DATE OF JUDGMENT: 15/02/1979

BENCH: KOSHAL, A.D. KRISHNAIYER, V.R. DESAI, D.A.

CITATION:
1979 AIR 1314 1979 SCR (3) 209
1979 SCC (3) 71

ACT:
Hindu Succession Act, 1956-S. 4-Scope of-Share of a baridar (turnholder) in the offerings of a temple-if a heritage right nature of office of baridar-Custom that offerings should go to specified sub-castes-if valid.

HEADNOTE:

The plaintiff’s (respondent’s) father and the defendants (appellants) were entitled to receive a defined share in the offerings made at a holy shrine. On her father’s death the plaintiff claimed his share in the offerings alleging that both under the law of inheritance and by virtue of her father’s will executed in her favour, she was entitled to his share; but the defendants interfered with her right to collect that share.

In the plaintiff’s suit the defendants contended that only members belonging to four specified sub-castes were entitled to receive the offerings and the plaintiff having lost her sub-caste by reason of her marriage outside those sub-castes she was not entitled to her father’s share. But this argument was rejected by the trial court which held that on the death of the baridar (turnholder) his heirs inherited his right to receive offerings just as they inherited his other property and that therefore, the plaintiff was entitled to the offerings both under the Hindu Succession Act and the will executed by her father.

On appeal a Division Bench of the High Court held that where offerings were received by persons independently of any obligation to render services, they were alienable and attachable and that the custom which restricted the right to a share in the offerings only to members of the four specified subcastes, could not be given effect to in view of the provisions of the Hindu Succession Act and that therefore, the plaintiff was entitled to succeed to the right though she did not belong to any of the sub-castes.

On further appeal to this Court it was contended on behalf of the appellant that (1) the right of the baridar was not a transferable right and (2) the right to a share in the offerings and the duties attached to it must be regarded as an office like that of a shebait and cannot be regarded as heritable property.

Dismissing the appeal,

^
HELD: The right of the baridar was a transferable right.

1. To begin with, the right to a share in the offerings, according to the settlement record prepared for the village and a resolution passed by the Dharmarth Committee, was restricted to the four sub-castes, and similarly the baridars did not perform any duties in return. Sometime later, however, certain obligations, such as to provide permanent servants, to look after visitors and the like, were superimposed on that right. Though the right to receive a share in the offerings was subject to the performance of those duties none of them was in nature priestly or required a personal qualification. All of them were of a non-religious or secular character which could be performed by the baridar’s agents or servants incurring expense on his account. When the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of personal nature, (such as officiating the worship) such a right is heritable as well as alienable. [217 B-H]

Balmukand & ors. v. Tula Ram & ors., AIR 1928 All. 721 approved.

2. (a) The right of the baridars cannot be equated with the right and duties of a shebait. The baridars were not managers of the shrine in the sense that a shebait is in relation to a temple in his charge. The overall management of the temple vested in the Board of Trustees known as Dharmarth Committee. [218 E]

(b) It is not correct to say that shebaitship is neither more nor less than an office and is not heritable property. Shebaitship cannot be described as a mere office. In addition to certain responsibilities it carries with it a definite right to property. It is well-established that in the concept of Shebait, both the elements of office and property, duties and personal interest are mixed up and one element cannot be detached from the other. Old texts as courts have recognised heriditary office of shebaitship as immovable property. [218 F; 220 A-B]

Angurbala Mullick v. Debabrata Mullick, [1951] SCR 1125; Ram Rattan v. Bajrang Lal & ors. [1978] 3 SCR 963 followed.

3. The right to share the offerings being a right coupled with duties other than those involving personal qualifications and being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act in supersession of all customs to the contrary in view of s.

4 of that Act. [220 H]
In the instant case, in the light of s. 4 of the Hindu Succession Act the requirement that the right could not be exercised by a person not belonging to any of the four sub- castes becomes ineffective. [220 H]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1118 of 1972

(Appeal by Special Leave from the Judgment and Order dated 18-1-72 of the Jammu and Kashmir High Court in L.P.A. No. 6 of 1969.)

L.N. Sinha, Satish Gupta, K.J. John and P.P. Singh, for the appellant

R.K. Bhat and D.C. Anand for respondent 1B-1K. The Judgment of the Court was delivered by

KOSHAL, J.-This appeal by special leave has arisen out of a suit brought by Smt. Punna, respondent No. 1, against the two appellants and respondent No. 2 for the issuance of a perpetual injunction restraining the three defendants from interfering with her right to recover her father’s share of six annas in a rupee in the offerings made at the sacred shrine of Shri Vaishno Devi Ji which is situated on the Trikutta Hills. The suit was decreed by the trial court whose judgment was upheld in first appeal by the District Judge, in a second appeal by a learned Single Judge of the High Court of Jammu & Kashmir and in a Letters Patent Appeal by a Full Bench of that Court. It is the judgment of the Full Bench (which is dated the 18th of January, 1972) that is impugned before us.

2. The averments made in the plaint may be summarised thus. The plaintiff is the daughter of one Bagu who died in or about the year 1959. During his life time Bagu and the three defendants were entitled to receive the offerings made at the shrine of Shri Vaishno Devi Ji on certain days falling within every seventh Bikrami year so that Bagu would have 6/16th share therein and the defendants collectively a similar share. After the death of the plaintiff’s father the parties were entitled to receive the offerings in the shares abovementioned on every eighth day in the Bikrami year 2019, the plaintiff having succeeded to the share of her father both under the law of inheritance and by virtue of a will executed by him in her favour. The plaintiff had to resort to the suit as the defendants had started interfering with her right to collect her share of the offerings.

3. The defendants contested the suit. They challenged the will set up by the plaintiff as a forged one and further pleaded that only members of four sub-castes namely, Khas Thakars, Darora Thakars, Manotra Thakars and Samnotra Brahmins were entitled to receive the offerings and that while Bagu was entitled to a share in the same, the plaintiff was not as she had lost her original sub-caste by marriage outside the four sub-castes mentioned above. The offerings, according to the defendants, were also not liable to devolve by inheritance or demise.

4. The findings arrived at by the trial court were these:

(i) On the death of a baridar (which expression, when literally translated, means turn-holder) belonging to any of the aforementioned sub-castes, his heirs inherited his right to receive offerings just as they inherited his other property.

(ii) Under section 4 of the Hindu Succession Act, any custom or usage inconsistent with the provisions of that Act becomes ineffective.

(iii) Even under section 6 of the Hindu Succession Act read with the Schedule appended therto the property of Bagu would devolve on the plaintiff in case Bagu died intestate.

(iv) Gagu executed a valid will in favour of the plaintiff devising to her the right to receive the offerings, apart from other properties.

(v) The plaintiff was entitled, in view of the above four findings to inherit the right to receive offerings not only by reason of the provision of sections 4 and 6 of the Hindu Succession Act, but also because of the will.

(5) At the hearing of the Letters Patent Appeal by the Full Bench, the following four contentions were raised on behalf of the defendants:

(i) The chance of future worshippers making offerings to the deity is a mere possibility of the nature referred to in clause (a) of section 6 of the Transfer of Property Act and is not property which can be transferred or inherited.

(ii) The right to receive offerings is not a transferable or heritable right.

(iii) The provisions of the Hindu Succession Act do not apply to the case in hand.

(iv) According to the custom governing the shrine of Shri Vaishno Devi Ji, only the abovementioned four subcastes were entitled to share the offerings.

All these contentious were rejected by the Full Bench as untenable. In regard to the first of them the Full Bench followed Balmukand and Others v. Tula Ram and Others in which it was held that the right to receive offerings when made is a definite and fixed right and does not depend on any possibility of the nature referred to in clause (a) of section 6 of the Transfer of Property Act, because the fact that offerings whether large or small are bound to be made is a certainty.

In relation to the second contention, the Full Bench noted the contents of paragraph 422 of “Principles of Hindu Law” by Mulla which states, inter alia, that where offerings, though made to idols, are received by persons independently of any obligation to render services, they are alienable and attachable. Reference in this connection was also made to Balmukand and Others v. Tulla Ram and Others (supra) wherein the following passage occurs: “but when the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of a personal nature, such as officiating at the worship we are unable to discover any justification for holding that such a right is not transferable. That the right to receive the offerings when made is a valuable right and is property, admits of no doubt and, therefore, that right must, in view of the provisions of section 6 of Transfer of Property Act, be held to be transferable, unless its transfer is prohibited by the Transfer of Property Act or any other law for the time being in force.”

In view of these observations which were adopted and followed in Nand Kumar Dutt v. Ganesh Dass, the Full Bench, being in agreement therewith, proceeded to determine whether the right to receive the offerings in the present case was or was not independent of services of a priestly or personal nature. The following translation of an extract from the Wajib-ul-Arz relating to village Purana Daiur wherein the holy shrine is situated, was then taken up for consideration:

“Leaving aside cash, whatever is the ’Charatth’ at the temples of ’Ad Kanwari’ and ’Sri Trikutta Devi’ the entire Darora community distributes that among itself and of (?) other attached areas of Pangal, Sarron, Batan, Kotli, Gran, Parhtal etc. according to hereditary shares. And the castes ’Thakar Khas’ and ’Minotra’ are included in it. Darora caste take two shares and Manotra and Khas castes also take one equal share of Charatth’. That is divided as per hereditary shares. There is no service in lieu thereof. Only it is described as the blessings of Goddess. Rupees twenty one hundred (two thousand one hundred rupees) go to the Government. Every baridar keeps his man present in the temple who receives the ’Charatth’. Pujaries get pay from us.”

and it was interpreted to mean that the right to share in the offerings made at the holy shrine had no connection with any priestly functions or with other services involving qualifications of a personal nature and therefore was a heritable as well as allenable right. This very conclusion was reached by the Full Bench on a consideration of the deposition of the Patwari of the concerned circle and the Ain-i-Dharamarth which purports to be the constitution of a Board of Trustees appointed by the State to manage the shrine.

In relation to the third contention, the Full Bench noted that the properties to which the Hindu Succession Act does not apply are only those which find enumeration in section 5 thereof, that the right to share the offerings is not one of those properties and that, therefore, such a right could not but be governed by the provisions of the Act.

In repelling the last contention the Full Bench relied upon the provisions of the Hindu Succession Act which over- rides all customs or usage being part of the Hindu Law as in force immediately prior to the commencement of the Act and concluded that the custom of the right to share in the offerings being restricted to members of the four sub-castes abovementioned could not be given effect to and that the plaintiff was fully entitled to succeed to that right in spite of the fact that she did not belong to any of those sub-castes.

It was in these premises that the Letters Patent Appeal was dismissed by the Full Bench.

6. At the very outset Mr. L.N. Sinha, learned counsel for the appellant, has drawn our attention to the fact that the extract from the Wajib-ul-Arz taken note of by the Full Bench of the High Court relates not to the temple of Shri Vaishno Devi Ji but to a couple of other temples situated in its vicinity, namely, the temples of ’Ad Kanwari’ and ’Sri Trikutta Devi’ and has urged that the extract could not possibly relate to the temple of Shri Vaishno Devi Ji which was the main temple in the complex and a reference to which could not have been omitted from the extract in case it was intended to apply to that temple also. A careful perusal of the extract shows that Mr. Sinha’s contention is well- founded because there is not so much as a hint to the main temple in the extract. According to Mr. Sinha, the duties to which the right to share the offerings is subject are detailed in the settlement record prepared for village Daiur (Shri Vaishno Devi Ji) for the year 1965-66 Bikrami and a resolution passed by the Dharamarth Committee on Sawan 27, 1983 Bikrami. These documents may be set out in extenso:

Settlement Record

“In the column of ownership, the State is entered as owner; in the column of possession-Dharmarth Trust entered as in possession. ’Mandir Gupha’ situate on land comprising 7 marlas bearing Khasra No. 166 and ’Bhawan’ situate on land comprising 4 marlas bearing Khasra No. 167. The sub-caste Thakar Darora, Manotra, Khas, and Brahmin Samnotra have been sharing the offerings according to the shares mentioned below from the very beginning. Thakar Daroras and Brahmin Samnotra are entitled to three shares and one share respectively out of 2/3 of the total offerings whereas Thakar Manotras and Khas are entitled to share equally in the rest 1/3 of the total offerings.

“Darora Thakars are sub-divided into further four subcastes namely; (i) Darora Sunk (ii) Darora Jaga (iii) Darora Pai and (iv) Darora Deoch and each one of them has one equal share. Similarly Brahmin (Samnotra) have also divided their share into four shares which are received as under:

Samnotra Brahmins from the branch of ’Darya’ one share, Brahmins from the branch of ’Bairaj’ one share; Brahmins from the branch of ’Gobind’ one share; and Brahmins from the branch of ’Ganesh’ one share. Therefore ’Darora Sunk’ and Samnotras from the branch of ’Bairaj’ have their turn together in the one year and they divide the offerings for that in the proportion of 3.1 (i.e. 3 shares of Darora Sunk and 1 share to Samnotras from the branch of Bairaj). Similarly Brahmins from the branch of ’Darya’ have their turn with ’Darora Jaga’ Brahmins from the branch of ’Ganesh’ with ’Darora Parath’ and Brahmins from the branch of ’Ganesh’ with ’Darora Deoch’ and Brahmins in each case receive 1/4th share and Darora Thakars have 3/4th share.

“In the beginning nothing was taken from these persons (baridaran) in consideration of their receiving the offering. But because the Sadhus would often go to the shrine and due to the mismanagement of their stay and meals over there, there were always riots at the shrine. Therefore, in the year 1907 Bikrami during the regime of Maharaja Gulab Singh an amount of Rs. 1150/- was fixed as ’Aian’ to be paid by the baridars for the management of stay and meals for Sadhus at the shrine. The said amount was to be deposited in the State Treasury. Thereafter in 1920 Bikrami another hundred rupees were added to the above said amount and thenceforth Rs. 1250/- were fixed per annum which was being deposited in the State Treasury. After 1940 Bikrami the said amount of Rs. 1250/- was being deposited with the Dharmarth Trust and this continues till today. The said amount is recovered from Thakar sub-castes. Besides this, so many other things (such as silk chunis etc.) are received from the said Thakar baridars. Thakar baridars are also liable to provide three permanent servants and six more peons during the season and will be liable to pay them. The said Thakars are liable to arrange the carriage and pay for the ’Parshad’, etc., from Katra to Vaishno Devi temple. With regard to the cattle kept by the Dharmarth Trustees, the said Thakars are liable to arrange for taking them from one place to another. If any Government servant visits the shrine the said Thakars will be liable to arrange for the carriage of his luggage, etc. The said Thakars are also liable to perform the following duties:

(1) Cleanliness of the Gupha (Vaishno Devi temple) and the compound appurtenant thereto.

(2) To carry Puja material inside the Gupha (temple along with the Pujari.

(3) If during mela season there is any trouble to any pilgrim or he becomes, sick, etc, the said Thakars are liable to make proper arrangements for the removal of any such trouble.”

RESOLUTION OF THE DHARMARTH COMMITTEE

“(a) Dharmarth Trust shall charge its usual Aian (rent) from the baridaran which shall be paid by them before they distribute their share of the offering. The baridar who refuses or avoids the payment of rent to Dharmarth shall not be entitled to receive his share of the offering and the same shall be attached and deposited with the manager, Dharmarth Trust. The baridar whose share has been thus attached can receive his share on payment of the rent due to the Dharmarth Trust.”

“(b) Unanimously it is passed that the strangers or persons other than baridars (i.e. four sub-castes) shall have no right to get the Puja performed in the shrine.”

“(c) In case any baridar or his legal representative, due to any reason, cannot attend in person then it will be the duty of other co-sharer to deposit the absentee’s share with the Manager, Dharmarth Trust and when that baridar comes present, the Manager, Dharmarth Trust shall, after deducting the due, if any, from him to the Dharmarth, pay his share to him. The baridaran shall be bound to perform the duties (such as Kah, Kunda, Argi etc. as being performed by them previously).”

According to these documents the right to share the offerings is restricted to members of the four sub castes abovementioned, and although to begin with baridars did not perform any duties in return, certain obligations were superimposed on the right from the year 1907 Bikarmi onwards. Those obligations are:

(a) A duty to deposit a fixed annual sum with the Dharmarth Trust to be spent on arrangements for lodging and boarding of Sadhus visiting the shrine.

(b) To provide three permanent servants, in addition to six peons, during the “season”.

(c) To pay for the ’prasad’ and to arrange its transport from Katra to Vaishno Devi temple.

(d) To arrange for the cattle owned by the Dharmarth Trust being taken from one place to another.

(e) To arrange for the carriage of the luggage of Government servants visiting the shrine.

(f) To keep the temple and the compound appurtenant thereto in a state of cleanliness.

(g) To carry inside the temple the material required for worship by the priest.

(h) To look after visitors to the shrine who fall ill and to make proper arrangements for the restoration or their health.

There is thus no doubt that the right to receive a share in the offerings is subject to the performance of onerous duties. But then it is apparent that none of those duties is in nature priestly or requiring a personal qualification. On the other hand all of them are of a non- religious or secular character and may be performed not necessarily by the baridar personally but by his agents or servants so that their performance boils down to mere incurring of expense. If the baridar chooses to perform those duties personally he is at liberty to do so. But then the obligation extends merely to the making of necessary arrangements which may be secured on payment of money to others, the actual physical or mental effort involved being undertaken by those others. The right is, therefore, a transferable right as envisaged in the passage above extracted from Balmukand and other v. Tula Ram and others (supra) which has not been challenged before us as erroneous and which we regard as laying down the law correctly. The contentions raised by Mr. Sinha to the contrary is thus repelled.

7. Another challenge made by Mr. Sinha to the impugned judgment is that the right to share offerings coupled with the duties to which it was subject must in its totality be regarded as an office (like that of a shebait) only and not as property and that therefore no question of its heritability could arise. In this connection reference was made to the following observations made by Mukherjea, J., who delivered the judgment of the majority of this Court in Angurbala Mullick v. Debabrata Mullick.

“In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager.”

There is nothing to indicate that baridars in the present case are the managers of the shrine in the sense that a shebait is in relation to the temple in his charge. On the other hand it appears that the overall management of the shrine vests in the Board of Trustees known as Dharmarth Committee and it would not be correct therefore to look at the right of the baridars in the light of the rights and duties of a shebait. However, it may be pointed out that shebaitship cannot be described as a mere office because apart from certain responsibilities, it carries with it a definite right to property. This is a proposition on which emphasis was laid by this Court in Angurbala’s case (supra) itself. Mukherjea, J., observed in this connection:

“But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebtaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Monohar Mukherji v. Bhupendra Nath Mukherji and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary, and again in Bhabatarini v. Ashalata. The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasise the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu Law from an early date. “According to Hindu law,” observed Lord Hobhouse in Gossamee Sree Greedharreejee v. Rumanlollji Gossammee “when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usase, course of dealing, or some circumstances to show a different dealing, or some circumstances to show a different mode of devolution.” Unless, therefore, the founder has disposed of the shebaitship in any particular manner-and this right of disposition is inherent in the founder or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder.”

Angurbala’s case was followed by this Court in a recent decision reported as Ram Rattan v. Bajrang Lal & Others wherein Desai, J., who delivered the judgment of the Court observed:

“In the conception of shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other. Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have recognised hereditary office of shebait as immovable, property, and it has all along been treated as immovable property almost uniformly. While examining the nature and character of an office as envisaged by Hindu law it would be correct to accept and designate it in the same manner as has been done by the Hindu law text writers and accepted by courts over a long period. It is, therefore, safe to conclude that the hereditary office of shebait which would be enjoyed by the person by turn would be immovable property.”

These observations as also those made in Angurbala’s case and extracted above demolish the contention of Mr. Sinha that shebaitship is nothing more or less than an office and is not heritable property.

8. The right to share the offerings being a right coupled with duties other than those involving personal qualifications and, therefore, being heritable property, it will descend in accordance with the dictates of the Hindu Succession Act and in supersession of all customs to the contrary in view of the provisions of section 4 of that Act, Sub-section (1) of which state:

(a) Save as otherwise expressly provided in this Act-any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act:

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provision’s contained in this Act.”

The requirements of the custom relied upon by the appellants to the effect that the right could not be exercised by a person who is not a member of any of the four sub-castes mentioned above becomes wholly ineffective in view of these provisions, being contrary to the order of succession laid down in Chapter II of the Hindu Succession Act under which the right devolves on the plaintiff-respondent.

7. The only contention raised by Mr. Sinha is that the plaintiff had not stated in any part of the pleadings that she was prepared to carry out the services to the performance of which the right to share the offerings is subject and that therefore she was not entitled to a decree. This contention must be repelled for the simple reason that it was not raised before the High Court. Besides, there being no repudiation on her part of the obligations to render the services abovementioned, her claim must be regarded for the enforcement of that right coupled with those services and the decree construed accordingly even though it may be silent on the point.

9. In the result the appeal fails and is dismissed, but the parties are left to bear their own costs throughout.

P.B.R. Appeal dismissed.

The post Badri Nath & Anr. Vs. Mst. Punna (Dead) by Lrs & Ors. appeared first on B&B Associates LLP.

Dalip Singh And Ors. vs State Of Punjab

DATE: 12 January, 1979

Equivalent citations: AIR 1953 SC 364 a, 1979 CriLJ 700, 1982 (1) SCALE 502, (1979) 4 SCC 332 a, 1979 (11) UJ 334 SC

Author: N Untwalia

Bench: N Untwalia, S M Ali

JUDGMENT

N.L. Untwalia, J.

1. This is an appeal by special leave from the judgment of the Punjab and Haryana High Court confirming the death sentence imposed upon each of the three appellants under Section 302 read with Section 34 of the Penal Code for the murder of five persons belonging to one family. Because of the family disputes and rivalry, a serious occurrence took place at about sun set time on the 2nd of December, 1975 resulting in the death of five members of the same family. The appellants are also very close agnation relations of the deceased.

2. Jetha Singh, Teja Singh and Venir Singh were brothers. Jetha Singh was unmarried and used to live with Teja Singh. The three brothers had divided their properties at a private partition. Appellant Dalip Singh and Kundan Singh are sons of Veer Singh who is dead. Appellant Balvinder Singh and his brother Baljev Singh (since acquitted) are the sons of appellant Dalip Singh. Teja’s wife was Pal Kaur. They had three sons and a daughter. Their names being Ram Singh, Sucha Singh, Anup Singh and Darsho. A few months before the occurrence, Jetha Singh raised a sum of Rs. 3,000/ at the instance of his brother Teja Singh mortgaging four Kanals of his land. Appellants Dalip Singh and Kundan Singh wanted a share in that money as they could not reconcile themselves with the fact that the branch of Teja Singh alone should enjoy the property or the money of Jetha Singh. They being the sons of another brother of Jetha wanted to lay a claim on the property and money of Jetha Singh. It appears that it was not known to the prosecution as to how and to what extent the family disputes and rivalry went on gradually aggrava ting and what was the immediate cause of the occurrence. The two brothers amely Jetha Singh and Teja Singh who could throw light on this aspect of the atter are both killed in the occurrence. But that is of consequence in this case.

3. According to the prosecution case on the day and at the time of the occurrence the four accused went to the house of Teja Singh armed with deadly eapons. Dalip Singh had a spear and the other three had Kripans. The three appellants attacked Teja Singh with their respective weapons while he was sitting in a room in his house. Baldev singh (since acquitted) was standing at the oor as a guard. Sucha Singh tried to escape but Baldev Singh stopped him injuring him on the left shoulder with his Kirpan The others also attacked him and he fell down. Pal Kaur, Anup Singh and Darsho ran out of the house. They were chased by Darsho was given a Kirpan injury on the head of Baldev ingh and she fell down. All the accused surrounded Pal Kaur and Anup Singh nd caused injuries to them. They fell down. The accused raised a Lalkara aying that Jetha Singh and Ram Singh should also be done away with. Saying o they went towards a well and the fields of Teja Singh where Jetha Singh and am Singh were. There they are said to have attacked, with their respective weapons, Jetha Singh and Ram Singh.

4. Balbir Singh, P.W. 6, a close neighbour of Teja Singh, could see only a part of the occurrence and in the company of Sarpanch Surti Singh (not examined) he rushed to the Police Post at Chheharta and gave a report Ext. P/E to Jarnail Singh, P.W. 28, the Assistant Sub-Inspector of Police, Incharge of the Out Post. Since Balbir Singh did not notice as to whether any person was dead or alive and himself had seen the attack on Pal Kaur only, in the report which he lodged he mentioned only that part of the occurrence which he had seen with his own eyes. On that report a case under Section 307 of the Penal Code was instituted at the Police Station Sadar. The report was lodged at the Police Post at 6.45 P.M. the same day i.e. the 2nd December, 1975 and it was registered in the Police Station 7.20 P.M. P.W. 28 proceeded to the village of occurrence with a Head Constable and two Constables. They learnt there that Sucha Singh and Jetha Singh had died and Teja Singh was lying unconscious in the house and that Ram Singh, Pal Kaur and Anup Singh and Darsho had been taken to the Hospital at Amritsar. Teja Singh died on the way when he was being removed to the Hospital sometime later. Pal Kaur died in the Hospital on the 11th December, 1975 and Ram Singh died there on the 13th December.

5. The learned Additional Sessions Judge, Amritsar, who tried the four accused for the ghastly murder of five persons and for causing injuries to Darsho, PW 8 and Anup Singh, PW 9 acquitted Baldev Singh as his name was not mentioned in the First Information Report as also for some other reasons. He, however, convicted the three appellants under Section 302 read with Section 34 of the Penal Code imposing death sentence on each of them as also a fine of Rs. 2,000/ separately for each of the five murders. They were also convicted under Section 324 of the Penal Code for causing hurt to Anup Singh and Darsho. The High Court dismissed their appeal, accepted the death reference and confirmed the death sentence.

6. Mr. Frank Anthony, learned Counsel for the appellants, made several submissions to persuade us to acquit them or in any event to commute the death sentence imposed upon each of them. We have considered all the submissions made, many of them were of such a nature that we had no hesitation in rejecting them outright. They do not merit any detailed discussion in our judgment as in an appeal on grant of special leave under Article 136 it is not necessary to deal with all of them. We shall, however, proceed to deal with some of them.

7. At the outset it may be mentioned that the prosecution had also led evidence of recoveries of certain articles said to have been made at the instance of the accused But finding infirmities in that evidence the Trial Court did not rely upon them. Apart from the fact that accused Baldev Singh was a lad of about 12 years of age at the time of the occurrence, the evidence against him was not free from doubt. He, was therefore, acquitted The three appellants were convicted for the murder of Teja Singh, Sucha Singh and Pal Kaur chiefly upon the evidence of Darsho, PW 8, Anup Singh, PW 9 and partly upon the evidence of Balbir Singh, PW 6. Mr. Anthony asked us to reject the evidence of Darsho and Anup in its totality because they had implicated BaldevSingh also. On the facts and in the circumstances of this case we find no substance in this argument The two courts of fact have rightly believed theirevidence. The other criticism was that Sarpanch Surti Singh and another Sarpanch named Jarnail Singh to whom one of the prosecution witnesses had gone were not examined They were not eye witnesses and it is not possible for us to take the view that their non examination in any way affected the prosecution case. The third criticism against the evidence of these two witnesses was that they were tutored witnesses and had given the prosecution version parrot like. Both of them were teenaged children of Teja Singh and their version was so truthful that it was rightly believed by the courts below.

8. There were two dying declarations of Ram Singh one oral and the other written which was recorded by the Assistant Sub Inspector of Police, PW 28 on 12-12-75. The oral dying declaration was made to PW 11 Tara Singh. Neither of the dying declarations was relied upon by the High Court because he had named Baldev Singh also. We may also add although a dying declaration recorded by a Police Officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in Sub-section (2) of Section 162 of the CrPC, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it is not recorded by a Magistrate or by a Doctor. As observed by this Court in Munnu Raja and Anr v. The State of Madhya Pradesh the practice of the Investigating Officer himself recorded a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declarations of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time of facility available to the prosecution for adopting any better method.

9. There is a dying declaration of Teja Singh, Ext. PFF recorded by Harcharan Singh, PW 10 He was the Head Constable of the Police Post Chhenarta. At the direction of the Assistant Sub Inspector of Police PW 28 he recorded the statement of Teja Singh at the spot. This dying declaration has been relied upon by the High Court. It could not be rejected on the ground that it was recorded by a Police Officer as he was in a critical condition and no other person could be available in the village to record the dying declaration of Teja Singh. But we find that there is a difficulty in relying upon this dying declaration. Jetha Singh and Ram Singh were attacked by the appellants after having raised a Lalkara at the house of Teja Singh to murder them. No body actually saw them murdering either of them. The place where the said two persons were murdered was about a furlong away from the house of Tejasingh. Teja Singh in his statement recorded by PW 10 Ext. PFF which is also signed by the Assistant Sub-Inspector stated:-

Dalip Singh, Kundan Singh, sons of Vir Singh and Binder, son of Dalip Singh, who are from our brotherhood have caused injuries to me and the male and female members of my family and my elder brother Jetha Singh with Kirpans, and spears on account of dispute over the property of Jetha Singh. They have murdered Jetha Singh and Sucha Singh by inflicting injuries to them.

The dying declaration seems to be otherwise truthful but for the fact that it could not be within the knowledge or vision of Teja Singh that Jetha Singh was murdered by the appellants. His saying so in the dying declaration makes his statement a bit doubtful. It is, therefore, safe to leave out of consideration this dying declarations. It is important to remember that if the dying declarations both oral and written of Ram Singh are discarded so also the dying declaration of Teja Sing, then no direct evidence remains on the record in regard to the murder of Jetha Singh and Ram Singh by the appellants. In all probability they had committed the murder of these two person also because after having raised the Lalkara they went towards the field where Jetha Singh and Ram Singh were. But in absence of a direct evidence on the point and also for want of conclusive chain of circumstantial evidence, legally it is not possible to hold that the three appellants were responsible for committing the murder of Jetha Singh and Ram Singh.

10. We are not impressed with the argument advanced on behalf of the appellants that the occurrence did not take place at about sun set time or that the First Information Report was ante-timed merely because the Illaqa Magistrate received the said report late by a few hours. It is difficult to accept the suggestion in this case that the appellants were falsely implicated and some unknown two persons had committed the murder of so many family members of Teja Singh. The evidence of the two stamped witnesses, Darsho and Anup Singh, is so truthful that absolutely there cannot be any doubt about the commission of the ghastly crime by the appellant in the murder of three of the five persons. Regarding the other two, a definite finding may not be possible to be recorded for lack of legal evidence.

11. For the reasons stated above, we maintain the conviction of all the three appellants under Section 302 read with Section 34 of the Penal Code for the murder of Teja Singh, Sucha Singh and Pal Kaur. We also maintain their other convictions. The Trial Court gave an opportunity to the appellants of hearing argument on the question of sentence. That was a sufficient compliance with the law, Argument on the question of sentence was also advanced in the High Court. There is no infirmity on that account at all. Special reasons have been given by both the courts for imposing the extreme penalty of death on each of three appellants. While generally agreeing with those reasons we feel persuaded to take a somewhat lenient view in the case of Balvi-nder Singh. We could not find with certainty for lack of legal evidence that he alongwith the other two appellants was responsible for causing the death of Jetha Singh and Ram Singh. Dalip Singh and Kundan Singh are nephews of Teja Singh and they had demanded a share in the sum of Rs. 3,000/- received by Jetha Singh on execution of the mortgage. Balvinder Singh was a young man in his twenties at the time of the occurrence. He is a grand nephew of Teja Singh. We, therefore, feel that in his case ends of justice would be met by sentencing him to life imprisonment instead of the imposition of the extreme penalty of death. We further do not feel persuaded to uphold the imposition of fine of Rs. 2,000/- on any of the appellants because after imposing a sentence of death it was not necessary on the facts of this case to impose any sentence of fine on any of them. In the result we uphold the conviction of all the appellants under various counts to the extent and in the manner indicated above. We uphold the sentence of death awarded to appellants Dalip Sing and Kundan Singh but set aside the imposition of fine of Rs. 2,000/ on each of them. We commute the sentence of death imposed upon Balvinder Singh and instead sentence him to undergo imprisonment for life. Sentence of fine of Rs. 2,000/- imposed upon him is also knocked down. The appeals are dismissed subject to the modification in the sentence as made above.

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IN THE SUPREME COURT OF INDIA
BACHAN SINGH ETC. ETC. …PETITIONER
Vs.
STATE OF PUNJAB ETC. ETC. …RESPONDENT
DATE OF JUDGMENT: 16/08/1982
BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V. ((CJ) SARKARIA, RANJIT SINGH GUPTA, A.C. UNTWALIA, N.L.
CITATION:
1982 AIR 1325 1983 SCR (1) 145
1982 SCC (3) 24 1982 SCALE (1)713
CITATOR INFO :
E 1983 SC1155 (3,4,5,6,8,9,12,13,23,27,28,29
RF 1989 SC 653 (17)
E&D 1989 SC1335 (10)
R 1989 SC2299 (2,3)
RF 1991 SC 345 (6,11)

J U D G M E N T

ACT:

Criminal Procedure Code, 1973 (Act 1 of 1974), Sections 377, 401, Scope of-Hearing of an appeal against their conviction and sentence filed by the accused along with the State appeal against their conviction under section 302 I.P.C. and a Revision Petition for enhancement of sentence- Their appeal itself, furnishes further opportunity to the accused to plead for their acquittal or reduction of sentence or to show cause against the enhancement of sentence.

^ HELD:

1. The revision petition under section 401 Crl. P.C.

for enhancement of the sentence was maintainable as it was not permissible for the revision petitioner to file an appeal under section 377. The High Court effectively disposed of both the appeals and the revision petition even though there was an inadvertent mistake in not making a reference to the revision petition in the judgment. [647 F- G, 648 B]

2. The opportunity for pleading for acquittal was amply furnished to the accused at the hearing of their own appeal against their conviction, and the same appeal furnished them the necessary opportunity for pleading for their acquittal or the reduction of the sentence. That, in fact, was the subject matter of their appeal. The fact that the appeal filed by the State 5-625SCI/79 646 against the acquittal of the accused under section 302 I.P.C. was heard along with their appeal against conviction and sentence, itself furnished an opportunity to show cause against the enhancement of the sentence. [648 C-D] 3. (a) In the petition filed under section 401 Crl.

P.C. for the exercise of the High Court’s power of revision, it was permissible for it to exercise the power of a Court of appeal under section 386 for enhancement of the sentence.

[648 E-F] (b) It was also permissible for the High Court under Section 397 Crl. P.C., to call for and examine the record of the proceedings before the trial court for purpose of satisfying itself as to the correctness, legality or “propriety” of any finding, “sentence” or order recorded or passed by that inferior Court. The High Court’s power of revision under section 401 Crl.P.C. in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge includes the power conferred on a court of appeal under section 386 to enhance or reduce the sentence. So when the record of the case was before the High Court in connection with the two appeals and the revision petition there was nothing to prevent the High Court from invoking its power under section 397 read with 401 Crl. P.C. and to make an order for the enhancement of the sentence. [648 F-H]

CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Crl.) No. 1383 of 1978.

From the Judgment and Order dated 3-1-1978 of the Punjab and Haryana High Court in Crl. A. No. 1039/74.

K. L. Jogga and L. N. Gupta for the Petitioner.

Hardev Singh for the Respondent. The Order of the Court was delivered by SHINGHAL, J.-We have heard learned counsel for the parties at length.

Accused Bachan Singh, Gurnam Singh and Chanan Singh were convicted by the Sessions Judge of Gurdaspur of an offence under section 304 Part I read with section 149 I.P.C. and were sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1000/-. They were also convicted of an offence under section 148 I.P.C. and sentenced to rigorous imprisonment for 2 years. The remaining two accused Ravail Singh and Vir Singh were convicted of an offence under section 304 Part I read with section 149 I.P.C., but they were sentenced to rigorous imprisonment for 5 years and a fine of Rs. 500/-. Further, they were convicted of an offence under section 147 I.P.C. and were sentenced to rigorous imprisonment for 1 year.

An appeal was filed by the accused against their conviction and sentence; and the State filed an appeal for their conviction and sentence under section 302 I.P.C. A revision petition was filed under 647 section 401 Crl. P.C. for enhancement of the sentence of imprisonment and fine “to meet the ends of justice”. The High Court of Punjab and Haryana made an express order on December 9, 1974 that the revision petition would be heard alongwith the criminal appeal (No. 1039 of 1974) filed by the accused.

By its impugned Judgment dated January 3, 1978, the High Court dismissed the appeal which was filed by the accused, but enhanced the sentence of Bachan Singh, Gurnam Singh and Chanan Singh accused under section 304 Part I read with section 149 I.P.C. to rigorous imprisonment for life and of accused Ravail Singh and Vir Singh under the same section to rigorous imprisonment for 10 years. While making that order, the High Court observed that the State appeal “for enhancement of punishment” was “partly accepted”. That is why all the five accused have applied to this Court for special leave under article 136 of the Constitution.

It has been argued by learned counsel for the accused that the High Court committed an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as contemplated by sub-section (3) of section 377 of the Code of Criminal Procedure.

It appears to us, however, that as the State Government did not file an appeal against the sentence under sub- section (1) of section 377 Cr.P.C, and as it is not disputed before us that its appeal was directed against the acquittal of the accused for the offence under section 302 I.P.C., there is no justification for the argument that the High Court committed an illegality in not complying with the requirement of sub-section (3) of that section for giving the opportunity to the accused of showing cause against the enhancement of the sentence or of pleading for their acquittal or for reduction of the sentence.

As has been stated, a petition was filed under section 401 Cr.P.C. for enhancement of the sentence, and it was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under section 377. It will be recalled that the High Court made an express order on December 9, 1974, for the hearing of the revision petition alongwith the appeal which had been filed by the accused.

The fact therefore remains that the High Court had before it the above mentioned appeals which had been filed by the accused and the State, and the revision petition under section 401 Cr.P.C. for enhancement of the sentence.

While that court dismissed the appeal of the 648 accused, and allowed the appeal of the State in part, it forgot to make a reference to the revision petition while drawing up the operative part of its order. That was an inadvertent mistake for, after reading the impugned judgment of the High Court, we have no doubt that it effectively disposed of both the appeals and the revision petition even though the wordings of the judgment in that respect were not quite appropriate.

But, even otherwise, there is no merit in the grievance of the accused that they were not given the opportunity of showing cause against the enhancement of the sentence or to plead for their acquittal or for reduction of the sentence.

The opportunity for pleading for acquittal was amply furnished at the hearing of their own appeal against their conviction, and the same appeal furnished them the necessary opportunity for pleading for the reduction of the sentence.

That in fact was the subject matter of their appeal.

It is not disputed before us that the High Court heard the State appeal against the acquittal of the accused, alongwith the appeal which was filed by the accused, and that furnished further opportunity to the accused to plead for their acquittal, or reduction of sentence, or to show cause against the enhancement of the sentence. There is thus no force in the argument to the contrary. It has to be appreciated that in respect of the petition which was filed under section 401 Cr.P.C. for the exercise of the High Court’s powers of revision, it was permissible for it to exercise the power of a Court of Appeal under section 386 for enhancement of the sentence, and if that had been done, there is no justification for the argument that the enhancement was illegal.

There is another reason for this view. It was permissible for the High Court under section 397 Cr.P.C. to call for and examine the record of the proceeding before the trial court for the purpose of satisfying itself as to the correctness, legality or “propriety” of any finding, “sentence” or order, recorded or passed by that inferior court. The High Court’s power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge, has been stated in section 401 Cr.P.C. to which reference has been made above.

That includes the power conferred on a Court of Appeal under section 386 to enhance or reduce the sentence. So when the record of the case was before the High Court in connection with the two appeals and the revision petition referred to above, there was nothing to prevent the High Court from invoking its powers under section 397 read with section 401 Cr.P.C. and to make an order for the enhancement of the sentence.

649 There is thus no force in the argument to the contrary.

All the same, we gave an opportunity to the learned counsel for the accused to advance his arguments on question of sentence and all that he was able to argue was that as the accused had undergone a portion of the sentence and, as the offence was committed in 1972, the High Court was not justified in enhancing the sentence. As is obvious, both these arguments are untenable and inconsequential because of the concurrent findings of the trial court and the High Court that the accused emerged from the house of accused Bachan Singh as soon as Sarup Singh (deceased) reached the place of occurrence, shouted that he should be taught a lesson for getting liquor recovered from them and beat him with their respective weapons. It has been found further that while accused Vir Singh caught hold of the hair of the deceased and Ravail Singh caught hold of his legs and felled him on the ground, Gurnam Singh, who was armed with a datar, dealt belows on his right knee while Chanan Singh gave a kirpan blow on his left hand, and then accused Gurnam Singh gave a blow on his right knee while Chanan Singh gave a kirpan blow on his left hand and he, Gurnam Singh and Bachan Singh dealt further blows on his left leg near the knee, as a result of which the left leg was completely severed from the body. It has also been concurrently found that the accused took away the chopped off leg of the deceased after wrapping it in his turban, and that he succumbed to the injuries soon after. The facts and the circumstances which have thus been established by the evidence of Pal Singh P.W.4, and Nishan Singh P.W.5, on which reliance has been placed by both the courts, justify the view taken by the High Court that the accused deserved the sentence awarded to them by it.

Learned counsel for the accused tried to argue that the conviction of the accused was not justified on the merits, and took us through the finding in regard to the motive for the offence, the nature of the medical evidence, the plea of self defence taken by accused Bachan Singh and the relationship of eye-witnesses Pal Singh P.W.4 and Nishan Singh P.W.5 with the deceased. Apart from the fact that there was no occasion for us to consider those arguments, we have no hesitation in saying that they are without merit.

In the view we have taken, the petition for special leave is dismissed.

V.D.K. Petition dismissed.

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DATE OF JUDGMENT30/01/1979

BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION: 1979 AIR 713 1979 SCR (2)1171 1979 SCC (2) 170

ACT: Bigamy, offence of under section 494 I.P.C.-Admission and legal evidence of actual marriage by custom of nata marriage attracts the provisions of section 494 I.P.C.

Nata marriage by customs and therefore void under section 17 of the Hindu Marriage Act, 1955-Whether voidness of a marriage under section 17 of the H.M.A., 1955 disattracts the applicability of the provisions of section 494 I.P.C.

HELD: 1. The second marriage was a valid marriage according to the custom of the nata marriage prevalent in the Telli community which requires the following two essential ceremonies:- (a) that the husband should take a pitcher full of water from the head of the prospective wife, and (b) that the wife should wear chura by the husband.

The prosecution through PWs. 2, 3, 4 and 5 having proved that these ceremonies have been duly performed, that there was such a custom which requires the said ceremonies having been admitted by the defence witnesses 3 and 5 and the validity of the first marriage not having been disputed, Section 494 I.P.C. applies in terms and the appellant must be held to have committed the offence of Bigamy as contemplated by section 494 I.P.C. [1176A-E]

2. The combined effect of section 17 of the Hindu Marriage Act and section 494 I.P.C. is that when a person contracts a second marriage after the coming into force of the said Act while the first marriage is subsisting, such a person commits the offence of bigamy. [1174 E] Section 17 of the Hindu Marriage Act, 1955 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of section 494 I.P.C., the essential ingredients of which are: (i) that the accused spouse must have contracted the first marriage (ii) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and (iii) that both the marriages must be valid in the sense that the necessary 1172 ceremonies required by the personal law governing the parties had been duly performed and (iv) the second marriage must have become void by virtue of the fact that it had taken place in the life time of one of the spouses. [1173F- H]

3. Where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under section 494, I.P.C. if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under section 17 of the Hindu Marriage Act is in fact one of the essential ingredients of section 494 because the second marriage will became void only because of the provisions of section 17 of the Hindu Marriage Act. Therefore, the contention that the second marriage being void section 494 I.P.C. will have no application is not correct. [1175F-G] Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra and Ors., [1965]2 S.C.R. 837; Kanwal Ram and Ors. v. The Himachal Pradesh Administration, [1966]1 S.C.R.

539 and Priya Bala Ghosh v. Suresh Chandra Ghosh; [1973]3 S.C.R. 961 applied.

[Bigamy being a serious offence for which the maximum punishment is seven years, the Court while maintaining the conviction reduced the sentence to one year.]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

255 of 1973.

Appeal by Special Leave from the Judgment and Order dated 16-7-73 of the Rajasthan High Court in S.B. Crl. Revn.

No. 309/73.

A. N. Mulla and B. P. Singh for the Appellant.

Sobhag Mal Jain and S. K. Jain for the Respsondent.

The Judgment of the Court was delivered by FAZAL ALI, J.-This appeal by special leave is directed against a judgment of the Rajasthan High Court by which the conviction of the appellant under Section 494 I.P.C. and sentence of two years rigorous imprisonment and fine of Rs.

2,000/- have been upheld. The facts of this case have been detailed in the judgments of the courts below and it is not necessary to repeat them. Suffice it to say that the accused Gopal Lal married the complainant Kanchan sometime in the year, 1963 and a child was born out of this wedlock. Soon thereafter the parties appeared to have fallen out and parted company. While the first marriage was subsisting Gopal Lal contracted a second marriage which according to the custom prevalent amongst Tellis is a valid marriage commonly known as nata marriage. This marriage was contracted on 20th of March, 1969. The complainant Kanchan, the first wife having come to know about this marriage filed a complaint on the 22nd March, 1969, on the basis of 1173 which appellant was prosecuted and ultimately convicted as mentioned above.

Mr. A. N. Mulla, learned counsel for the appellant, had submitted two points before us. In the first place it was contended that in view of the provisions of Section 17 of the Hindu Marriage Act, the second marriage being a void marriage, the provisions of Section 494 I.P.C. are not attracted at all. We have given our anxious consideration to this argument but we are of the opinion that the argument is wholly untenable. Section 494 runs thus:

“Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception-This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge”.

The essential ingredients of this offence are:

(1) that the accused spouse must have contracted the first marriage.

(2) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage and (3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.

It may also be noticed that Section 494 I.P.C. would come into play only if the second marriage becomes void by virtue of the fact 1174 that it had taken place in the life time of one of the spouses. Thus, it is not possible to accede to the contention of Mr. Mulla that merely because the second marriage was void under Section 17 of the Hindu Marriage Act hence Section 494 I.P.C. would not be attracted. Section 17 of the Hindu Marriage Act runs thus:

“Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly”.

What Section 17 contemplates is that the second marriage must be according to the ceremonies required by law. If the marriage is void its voidness would only lead to civil consequences arising from such marriage. Section 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of Section 494 of the Penal Code which has been extracted above.

Section 17 clearly provides that provisions of Sections 494 and 495 of the Penal Code shall apply accordingly. In other words though the marriage may be void under Section 17, by reason of the fact that it was contracted while the first marriage was subsisting the case squarely falls within the four corners of Section 494 and by contracting the second marriage the accused incurs the penalty imposed by the said statute. Thus the combined effect of Section 17 of Hindu Marriage Act and Section 494 I.P.C. is that when a person contracts a second marriage after the coming into force of the said Act, while the first marriage is subsisting he commits the offence of bigamy. (Emphasis ours). This matter no longer res integra as it concluded by a decision of this Court in Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra & Anr.(1) This Court while considering the question of bigamy qua the provisions of Section 17 observed as follows:

“Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of ss.

494 and 495 I.P.C. shall apply accordingly. The marriage between two Hindus is void in view of s. 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act;

1175 (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be ‘solemnized’, that marriage will not be void by virtue of s. 17 of the Act and s. 494 I.P.C. will not apply to such parties to the marriage as had a spouse living”.

The word ‘solemnize’ means, in connection with a marriage, ‘to celebrate the marriage with proper ceremonies and in due form’, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is ‘celebrated or performed with proper ceremonies and in due form’ it cannot be said to be ‘solemnized’. It is therefore essential, for the purpose of s. 17 of the Act that the marriage to which s. 494 I.P.C. applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form”.

It was thus pointed out by this Court that Section 17 of the Hindu Marriage Act requires that the marriage must be properly solemnized in the sense that the necessary ceremonies required by law or by custom must be duly performed. Once these ceremonies are proved to have been performed the marriage become properly solemnized and if contracted while the first marriage is still subsisting the provisions of Section 494 will apply automatically. In a decision of this Court in Kanwal Ram & Ors. v. The Himachal Pradesh Administration the earlier case was noticed by the Court and relied upon. The matter has also been fully discussed in Priya Bala Ghosh v. Suresh Chandra Ghosh. In view of the authorities of this Court, therefore, the following position emerges: where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under Section 17 of the Hindu Marriage Act is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of the Hindu Marriage Act. In these circumstances, therefore, we are unable to accept the contention of Mr. Mulla that the second marriage being void Section 494 will have no application. It was next contended by Mr. Mulla that there is no legal evidence to show that the second marriage which is said to 1176 be a nata marriage was actually performed. We are afraid, we are unable to go into this question because three courts have concurrently found as a fact that the parties were governed by custom of nata marriage and the two essential ceremonies of this marriage are:

(1) that the husband should take a pitcher full of water from the head of the prospective wife;

(2) that the wife should wear chura by the husband.

There is evidence of P.Ws. 2, 3, 4 and 5 who have proved fact that these ceremonies had been duly performed in their presence. That there was such a custom which requires these ceremonies was admitted by D.Ws. 3 and 5 who were examined by the appellant. The evidence led by the prosecution has been accepted by the High Court and the courts below and after perusing the evidence we are not in a position to hold that the finding of facts arrived by the courts below are wrong in law or perverse. From the evidence led by the prosecution, therefore, it has been clearly established that the second marriage which was performed by the appellant Gopal Lal with Gopi was a valid marriage according to the custom of the nata marriage prevalent in the Telli community to which the appellant belonged. This being so and the validity of the first marriage not having been disputed, Section 494 I.P.C. applies in terms and the appellant must be held to have committed the offence of bigamy as contemplated by Section 494 I.P.C. Lastly, Mr.

Mulla pressed this appeal on the question of sentence.

Bigamy is a serious offence and the maximum punishment under Section 494 is seven years. Therefore, where the offence of bigamy is proved the Court cannot take a very lenient view.

In the instant case the appellant was sentenced to two years and a fine of Rs. 2,000/-. It appears that the appellant has already paid a fine of Rs. 2,000/-. In these circumstances, therefore, we feel that the ends of justice will be met by reducing the sentence of imprisonment from two years to one year but maintaining the sentence of fine. With this modification the appeal is dismissed. The appellant will now surrender and serve out the remaining portion of the sentence.

S.R. Appeal dismissed.

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DATE OF JUDGMENT07/09/1978

BENCH: DESAI, D.A. KRISHNAIYER, V.R. REDDY, O. CHINNAPPA (J)

CITATION: 1979 AIR 75 1979 SCR (1) 563 1979 SCC (2) 80

CITATOR INFO : R 1980 SC1896 (142,143,147) R 1985 SC 617 (3) D 1985 SC1128 (9)

ACT:
Constitution of India 1950–Article 136-Scope of in labour matters Article 43A-Eixplained-Participation of workman in Managenuent.
Uttar Perdesh Industrial Disputes Act 1947-Workelrs retrellcled on grounds of losses.-rrihullal found retreluchllent unjustified-ordere reinstatement with back wages Speeial leave refused regalding reinstatement-Employer if could reopen at the time of hearing.

HELD: 1. Since the emoloyer’s prayer in the special ieave petition that the retrenched workmen should not be reinstated was rejected by this Court it meant that the Labour Court’s view that retrenchment was unjusified was correct. For the reasons found by the Labour Court retrenchment was motivated and so invalid. The workmen were entitled to the relief of reinstatement from the date they were sought to be retrenched. The order of the Labour Court on the question of reinstatement became final. [567 C-E]

2. Article 136 of the Constitution does not envisage this Court to be a regular Court of Appeal but it confers a discretionary power on it to grant special leave to appeal, inter Ala, against the Award of any Tribunal. The scope and ambit of this vide constitutional discretionary power cannot be 564 exhaustively defined. It cannot be so construed as to confer a right to a party when he has none under the law. The Court will entertain a petition for special leave in which a question of general public importance is involved or when the decisions would shock the conscience of this Court. The Industrial Disputes Act is intended to be a self-contained code and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration. Awards are given on circumstances peculiar to each dispute and the Tribunals are to a large extent free from restrictions of technical consider- rations imposed on Courts. A free and liberal exercise of the power under Article 136 may materially affect the fundamental basis of such decisions, viz., quick solution of such disputes to achieve industrial peace. [567 F-568 A] Bengal Chemical & Pharmaceutical Works Ltd, Calcutta v.

Their Workmen [1959] Suppl. 2 SCR 136 at 140 referred to.

2. In the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service.. The common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. [568 G- H]

3. Where termination of service is questioned as being invalid or illegal and the workman has to go through the litigation, his capacity to sustain himself throughout the protracted litigation is itself so precarious that he may not survive to see the day when relief is granted. If after such prolonged litigation the workman is not paid his back wages it would amount to a penalty for no fault of his. The workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. If the termination is illegal or motivated it may amount to unfair labour practice. Tn such circumstances reinstatement being the normal rule it should be done with full back wages. [569 B-D] Workmen of Calcutta Dock Labour Board & Anr. v.

Employers in relation to Calcutta Dock Labour Board & ors.

[1974] 3 S.C.C. 216, referred to.

Management of Panitole Tea Estate v. The Workmen [1971] 3 SCR 771 referred to.

Dhari Gram Panchayat v. Safai Kamdar Mandal [1971] 1 LLJ 508 approved.

Postal Seals Industrial Co-operative Society Ltd. v.

Labour Court ll Luck now & Ors. [1971] 1 LlJ 327 approved.

For awarding relief of back wages all relevant considerations will enter The verdict of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. The Tribunal will then exercise its discretion But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discre tion must be cogent and convincing and must appear on the face of the record. It should not be arbitrary, vague and fanciful but legal and regular. [570 GE] Susannah Sharn v. Wakefield [1891] AC 173 at 179 referred to.

565 on the question of the employer’s financial viability to pay back wages view of mounting losses the Supreme Court held.

Industry is a common venture, the participants being capital and labour Article 43A. requires the State to take steps to secure participation of workman in the management. From being a factor of production labour has become a partner in industry. It is a common venture in pursuit of a desired goal. If sacrifice is necessary in the overall interest of the industry it would be unfair to expect only labour to make the sacrifice. It should be common sacrifice. If sacrifice is necessary those who can afford and have the capacity must bear the brunt. [571 A-F] (b) In the present case there is nothing to show that the Managing Director has made any sacrifice. In the absence such information the weaker section of society cannot be expected to make a greater sacrifice than the directors In an appropriate case it would be appropriate to direct that till the loss is wiped out the managing directors shall not charge any fees for the services rendered and no dividend shall be paid. [571 G. 572 E-F] (c) As the appellant has turned the corner, and the industrial unit is looking up and started making profits, the retrenched workmen having already been reinstated and started earing their wages it would be appropriate to award 75% of the backs wages to the workmen to be paid in two equal instalments. [572 D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 656 of 1978.

Appeal by Special Leave from the Award dated 21-9-1977 of the Labour Court, Meerut in Adjudication Case No. 160/74.

G. B. Pia, L. R. Singh, R. P. Singh, R. K. lain, Suman Kapoor and Sukumar Sahu for the Appellant.

R. K. Garg, V. J. Francis and Madan Mohan for Respondent No. l.

G. N. Dikshit and o. P. Rana for Respondents 2-3.

The Judgment of the Court was delivered by F DESAI J. This appeal by special leave, limited to the question of grant of back wages, raises a very humane problem in the field of industrial jurisprudence, namely, where termination of service either by dismissal, discharge or even retrenchment is held invalid and the relief of reinstatement with continuity of service Is awarded what ought to be the criterion for grant of compensation to the extent of full wages or a Part of it ? A few relevant facts will highlight the problem posed.

Appellant is a private limited Company having set up an industrial unit in engineering industry. The raw material for its manufacturing process is tin plates. The appellant served notice of retrenchment on 56 workmen in February 1974 alleging non-availability or raw material to utilise the full installed capacity, power shedding limiting the 566 working of the Unit to 5 days a week, and the mounting loss.

Subsequently, negotiations took place between the Union and the appellant leading to an agreement dated 1st April 1974 whereby the workmen who were sought to be retrenched were taken back in service with continuity of service by the appellant and the workmen on their part agreed to co-operate with the management in implementing certain economy measures and in increasing the productivity so as to make the undertaking economically viable. Simultaneously, the workmen demanded a revision of the wage scales and the appellant pleaded its inability in view of the mounting losses. Some negotiations took place and a draft memorandum of settlement was drawn up which provided for revision of wages on the one hand and higher norms of production on the other, but ultimately the settlement fell through. Appellant thereafter on 1st July, 1974 served a notice of retrenchment on 43 workmen. The Tin Workers’ Union, Ghaziabad, espoused the cause of such retrenched workmen and ultimately the Government of Uttar Pradesh by its notification dated 9th october 1974, issued in exercise of the power conferred by Section 4-K of the U.P. lndustrial Disputes Act, 1947.

referred the industrial dispute arising out of retrenchment of 43 workmen, between the parties, for adjudication to the Labour Court. Names of the retrenched workmen were set out in an Annexure to the order of reference.

The Labour Court, after examining the evidence led on both sides and considering various relevant circumstances, held that the reasons stated in the notice dated 1st July, 1974, Ext. E-2, viz., heavy loss caused by non-availability of tin plates, persistent power curbs and mounting cost of production were not the real reasons for affecting retrenchment but the real reason was the annoyance felt by the management consequent upon the refusal of the workmen to agree to the terms of settlement contained in the draft dated 5th April, 1974 and, therefore, the retrenchment was illegal. The Labour Court by its award directed that all the workmen shall be reinstated in service from 1 st August, 1974 with full back wages, permitting the appellant to deduct any amount paid as retrenchment compensation from the amount payable to the workmen as back wages. the Appellant challenged the Award in this appeal. When the special` leave petition came up for admission Court rejected the special leave petition with regard to the relief of reinstatement but limited the leave to the grant of full back wages.

The question whether the workmen who were retrenched were entitled to the relief of reinstatement is no more open to challenge. Another words. it would mean that the retrenchment of workmen was invalid for the reasons found by the Labour Court and the workman were 567 entitled to the relief of reinstatement effective from the day on which A they were sought to be retrenched. The workmen were sought to be retrenched from 1st August, 1974 and the Labour Court has directed their reinstatement effective from that date. The Labour Court has also awarded full back wages to the workmen on its finding that the retrenchment was not bona fide and that the non-availability of the raw material or recurrent power shedding and lack of profitability was a mere pretence or a ruse to torment the workmen by depriving them of their livehood, the real reason being the annoyance of the appellant consequent upon the refusal of the workmen to be a party to a proposed settlement by which work-load was sought to be raised(l.

Mr. Pai, learned counsel for the appellant in his attempt to persuade us to give something less than full back wages, attempted to re-open the controversy concluded by the order of this Court while granting limited leave that the retrenchment was inevitable in view of the mounting losses and falling production for want OF raw material and persistent power shedding. It was said that for the limited purpose of arriving at a just decision on the question whether the workmen should be awarded full back wages, we should look into the compelling necessity for m-retrenchment of the workmen. Once leave against relief of reinstatement was rejected, the order of the Labour Court holding that retrenchment was invalid and it was motivated and the relief of reinstatement must follow, has become final. Under no pretext or guise it could now be re-opened.

Before dealing with the contentions in this appeal we must bear in mind the scope of jurisdiction of this Court under Article 136 of the Constitution vis-a-vis the Awards of the Industrial Tribunals. Article 136 of the Constitution does not envisage this Court to be a regular Court of appeal but it confers a discretionary power on the Supreme Court to grant special leave to appeal, inter alia, against the Award of any Tribunal in the territory of India. The scope and ambit of this wide constitutional discretionary power cannot be exhaustively defined. lt cannot obviously be so construed as to confer a right to a party which he has none under the law. The Court will entertain a petition for special leave in which a question of general public importance is involved or when the decision would shock the conscience of this Court. the lndustrial Disputes Act is intended to be a self- contained one and it seeks to achieve social justice on the basis of collective bargaining, collaboration and arbitration. Awards are given on circumstances peculiar to each dispute and the Tribunals are to a large extent free from resrtrictions of technical considerations imposed on courts. A free and 568 liberal exercise of the power under Article 136 may materially affect the fundamental basis of such decisions, viz., quick solution of such disputes to achieve industrial peace. Though Article 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where Awards are made in violation of the principles of natural justice causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation and final decision by this Court or discloses such other exceptional or special circumstances which merit consideration of this Court (See Bengal Chemical & Pharmaceutical Works Ltd., Calcutta v. Their Workman) (1) The question in controversy which fairly often is raised in this Court is whether even where reinstatement is found to be an appro priate relief, what should be the guiding considerations for awarding full or partial back wages. This question is neither new nor raised for the first time. It crops up every time when the workman questions the validity and legality of termination of his service howsoever brought about, to wit, by dismissal, removal, discharge or retrenchment, and the relief of reinstatement is granted. As a necessary corollary the question immediately is raised as to whether the workman should be awarded full back wages or some sacrifice is expected of him.

Let us steer clear of one controversy whether where termination of service is found to be invalid, reinstatement as a matter of course should be awarded or compensation would be an adequate relief. That question does not arise in this. appeal. Here the relief of reinstatement has been granted and the award has been implemented and the retrenched workmen have been reinstated in service. The only limited question is whether the Labour Court in the facts and circumstances of this case was justified in awarding full back wages.

It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived deprived workman of his earnings. if (1) [1959]] Suppl. 2 SCR 136 at 140.

569 thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted.

More so in our system where the law’s proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore. a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. If the D employer terminates the service illegally and the termination is motivated as in this case, viz ., to resist the workman’s demand for revision of wages. the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed(l with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P.

Industrial Disputes Act, 1947, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it the were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages.

When it was held that the termination of services was neither proper nor justified, it would not only show that the workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamldar Mandal(1), and a Division Bench of the Allahabad (1) 11-971] I Labour Law Journal 508 570 High Court in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court 11, Lucknow & ors.(l), have taken this view and we are of the opinion that the view taken therein is correct.

The view taken by us gets support from the decision of this Court in workman of Calcutta Dock Labour Board & Anr.

v.Employers in relation to Calcutta Dock Labour Board & ors.(2). In this case seven workmen had been detained under the Defence of India Rules and one of the disputes was that when they were released and reported for duty, they were not taken in service and the demand was For their reinstatement.

The Tribunal directed reinstatement of five out of seven workmen and this part of the Award was challenged before this Court. This Court held that the workmen concerned did not have any opportunity of explaining why their services should not be terminated and, therefore, reinstatement was held to be the appropriate relief and Act aside the order of the Tribunal. It was observed that there was to justification for not awarding full back wages from the day they offered to resume work till their reinstatement. Almost an identical view was taken in Management of Paniltole Tea Estate v. The Workmen(3).

In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on of the face of. the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice? according to law and not humor. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharm v.Workfild(4).

It was, however, very strenuously contended that as the appellant company is suffering loss and its carry-forward loss as on 31st March 1978 is Rs. 8,12,416.90, in order to see that the industry survives and the workmen continue to get employment, there must be come sacrifice on the part of workmen. If the normal rule in a case like this is to award full back wages, the burden will be on the appellant employer (l) [1971] I Law Journal, 327.

(2) [1974] 3 SCC 216.

(3) [1971] INSC 55; [1971] 3 SCR 774.

(1) [1891] AC 173 31 179.

571 to establish circumstances which would permit a departure from the A normal rule. To substantiate the contention that this is an exceptional case for departing from the normal rule it was stated that loss is mounting up and if the appellant is called upon to pay full back wages in the aggregate amount of Rs. 2,80,0OO/-, it would shake the financial viability of the company and the burden would be unbearable. More. Often when some monetary claim by the workmen is being examined, this financial inability of the company consequent upon the demand being granted is voiced.

Now, undoubtedly an industry is a common venture, the participants being the capital and the labour. Gone arc the days when labour was considered a factor of production.

Article 43A of the Constitution requires the State to take steps to secure the participation of workmen in the management of the undertaking, establishments or other organisations engaged in any industry. Thus, from being a factor of production the labour has become a partner in industry. lt is a common venture in the pursuit of desired goal.

Now? if a Sacrifice is necessary in the overall interest of the industry D or a particular undertaking, it would be both unfair and iniquitous to expect only one partner of the industry to make the sacrifice. Pragmatism compels common sacrifice on the part of both. The sacrifice must come from both the partners and we need not state the obvious that the labour is a weaker partner who is more often called upon to make the sacrifice. Sacrifice for the survival of an industrial undertaking cannot be an unilateral action. It must be a two way traffic. The management need not have merry time to itself making the workmen the sacrificial goat. If sacrifice is necessary, those who can afford and have the cushion and the capacity must bear the greater brunt making the shock of sacrifice as less poignant as possible for those who keep body and soul together with utmost difficulty. F The appellant wants us to give something less than full back wages in this case which the Labour Court has awarded.

There is nothing to show whether the Managing Director has made any sacrifice; whether his salary and perks have been adversely affected; whether the managerial coterie has reduced some expenses on itself. If there is no such material on record, how do we expect the workmen, the less affording of the weaker segment of the society, to make the sacrifice, because sacrifice on their part is denial of the very means of livelihood.

We have also found that since 1976-77 the appellant is making profit. A Statement of Account certified by the Chartered Accountants of the company dated 25th July, 1978 shows that the appellant has been making profit since 1976- 77. The unit is, therefore, looking up.

572 One relevant aspect which would assist us in reaching a just con clusion is that after retrenching 43 workmen effective from 1st August 1974, 36 of them were recalled for service on large number of days in 1975-1976 and 1977, the maximum being the case of Jai Hind who was given work for 724 1/4 days, and the minimum being Harsaran s/o Baldev who was given work for 15 days. An amount of Rs. 74,587.26 was paid to these 36 workmen for the work rendered by them since the date of retrenchment. Certainly, the appellant would get credit for the amount so paid plus the retrenchment compensation it must have paid. Even then we were told that the employer will have to pay Rs. 2,80,OOO/- by way of back wages. We were also told that the appellant had offered to pay by way of settlement 50% of the back wages. Therefore, the only question is whether we should confirm the Award for full back wages.

Now, undoubtedly the appellant appears to have turned the corner. The industrial unit is looking up. It has started making profits. The workmen have already been reinstated and therefore, they have started earning their wages. It may, however, be recalled that the appellant has still not cleared its accumulated loss. Keeping in view all the facts and circumstances of this case it would be appropriate to award 75% of the back wages to the workmen to be paid in two equal instalments. It may well be that in appropriate cases the Court may, in the spirit of labour and management being partners in the industry, direct scaling down of back wages with some sacrifice on management’s part too. We were, even here, inclined to saddle the condition that till the loss is totally wiped out the Managing Director and the Directors shall not charge any fee for the services rendered as Director, no dividend shall be paid to equity shareholders, and the Managing Director shall not be paid any overriding commission, if there be any, on the turnover of the company since this will account for the pragmatic approach of common sacrifice in the interest of the industry. We indicate the implications of Article 43A in this area of law but do not impose it here for want of fuller facts.

The Award shall stand accordingly modified to the effect that the retrenched workmen who are now reinstated shall be paid 75% of the back wages after deducting the amount paid to them as wages when recalled for work since the date of retrenchment and adjustment of the retrenchment compensation towards the amount found due and pay able. The appellant shall pay the costs of the respondents as directed while granting special leave.

N.V.K. Appeal dismissed.

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IN THE SUPREME COURT OF INDIA
SUNIL BATRA …PETITIONER
Vs.
DELHI ADMINISTRATION …RESPONDENT
DATE OF JUDGMENT: 20/12/1979

BENCH: KRISHNAIYER, V.R. PATHAK, R.S. REDDY, O. CHINNAPPA (J)

CITATION:
1980 AIR 1579 1980 SCR (2) 557
1980 SCC (3) 488

CITATOR INFO :
R 1981 SC 625 (7,8,11,12,14)
R 1981 SC 746 (3,4)
R 1981 SC1767 (11,13,21,23)
R 1982 SC 149 (16)
R 1982 SC 710 (108,109)
R 1986 SC 180 (39)

ACT:

Constitution of India 1950, Article 32-Tortune inflicted on prisoner in jail-factum of forture brought to notice of court-power and responsibility of court to intervene and protect prisoner.

Prisons Act 1894, Ss 27, 29 and 61 & Punjab Prison Manual, Paras 41, 47, 49 and 53-Solitary confinement, denial of privileges, amenities to prisoners-to be imposed with judicial appraisal of Sessions Judge-Prison Manual to be ready reach of prisoners-visits to jails by visitors, official and non-official-keeping of grievance boxes in prisons and remedial action on grievances by Sessions judges-Periodical reports to be forwarded to the High Court- reforms suggested in prison management and procedure.

Legal Aid-provision of free legal aid to prisoners- necessity of.

HELD:(Per Krishna Iyer and Chinnappa Reddy, JJ.)

1. (a) Prem Chand the prisoner, has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party.

Lack of vigilance is limited guilt. The primary guilt cannot be fixed because a criminal case is pending or is in the offing. The State shall take action against the investigating police for collusive dilatoriness and deviousness.[599 F] 558 (b) The Superintendent is directed to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted. No irons shall be forced on the person in vindictive spirit. [599 H] (c) Lawyers nominated by the District Magistrate, Sessions Judge, High Court or the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned courts, results which have relevance to legal grievances. [600 A-B] (d) Within the next three months, Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made. Access to such boxes shall be afforded to all prisoners. [600 C] (e) District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall be made to the High Court for the latter to initiate, if found necessary, habeas action. [600 D] (f) No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, an account of emergency is difficult such information shall be given within two days of the action.

[601 B-C]

2. In our era of human rights’ consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability.

[563 E]

3. Protection of the prisoner within his rights is part of the office of Article 32. [564 C]

4. It behoves the court to insist that, in the eye of law, prisoners are persons not animals, and to punish the deviant ‘guardians’ of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials ‘dressed in a little, brief authority’. when Part III is invoked by a convict. When a prisoner is traumatized, the Constitution suffers a shock. [564 D-E]

5. The courts in America have, through the decisional process, brought the rule of law into the prison system pushing back, pro-tanto, the ‘hands-off’ doctrine. The content of our constitutional liberties being no less, the dynamics of habeas writs there developed help the judicial process here. The full potential of Arts. 21, 19 & 14 after Maneka Gandhi has been unfolded by this Court in Hoskot and Batra. Today, human rights jurisprudence in India has a constitutional status and sweep. [573 A, 574 D]

6. Rulings of this Court have highlighted the fact that the framers of the Constitution have freed the powers under Art. 32 from the rigid restraints of 559 the traditional English writs. Flexible directives, even affirmative action moulded to grant relief, may realistically be issued and fall within its fertile width.

[575 F] Dwarkanath v. income Tax officer [1965] INSC 86; [1965] 3 SCR 536 referred to.

7. Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relieve, the Court will be a functional futility as a constitutional instrumentality if it does not go into action until the wrong is righted.

The Court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope. The court can issue writs to meet the new challenges. [576 D]

8. Affirmed in unmistakables terms that the court has jurisdiction under Art. 32 and so too under Art. 226, a clear power and, therefore, a public duty to give relief to sentence in prison setting. [576 F]

9. In Sunil Batra v. Delhi Administration (1978) 4 SCC 409 this Court rejected the ‘hands-off’ doctrine and ruled that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. Our Constitutional culture has now crystallised in favour of prison justice and judicial jurisdiction. [576 H-577 A]

10. Where the rights of a prisoner, either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warrant for this vigil. The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. [577 E-F]

11. Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods ‘right, just and fair’. [578 E]

12. A prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through ‘writ’ aid. The Indian human has a constant companion-the court armed with the Constitution. [578 H] Maneka Gandhi v. Union of India [1978] INSC 231; [1979] 1 SCC 248: N. H.

Hoskot v. Maharashtra, [1978] INSC 138; [1979] 1 SCR 192, referred to.

13. Implicit in the power to deprive the sentence of his personal liberty, the Court has to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of court sentences by executive palliation, if unwarranted by law. [579 B-C]

14. The court has power and responsibility to intervene and protect the prisoner against mayhem, crude or subtle, and may use habeas corpus for 560 enforcing in-prison humanism and forbiddance of harsher restraints and heavier severities than the sentence carries.

[579 E]

15. Law in the books and in the courts is of no help unless it reaches the prisoner in understandable language and available form. There is therefore need to get ready a Prisoners’ Handbook in the regional language and make them freely available to the inmates. To know the law is the first step to be free from fear of unlaw. [582 C] 16(i) The most important right of a prisoner is to integrity of his physical person and mental personality. No prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. [584 D, 583 C] (ii) Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and more dreadful sometimes, transfer to a distant prison where visits or society of friends or relatives may be snapped, allotment of degrading labour, assignment to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgement is an infraction of liberty or life in its wider sense and cannot be sustained unless Art.

21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary under Article 14, if it is dependent on unguided discretion, unreasonable under Art. 19 if it is irremediable and unappealable and unfair under Art. 21 if it violates natural justice. Some prisoners, for their own safety, may desire segregation. In such cases, written consent and immediate report to higher authority are the least, if abuse is to be tabooed. [584 F-H, 586 G] (iii) Visit to prisoners by family and friends are a solace in insulation: and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course, to search and discipline and other security criteria, the right to society of fellow- men, parents and other family members cannot be denied in the light of Art. 19 and its sweep., [586 H]

17. Prison power, absent judicial watch tower, may tend towards torture. The judges are guardians of prisoners’ rights because they have a duty to secure the execution of the sentences without excesses and to sustain the personal liberties of prisoners without violence on or violation of the inmates’ personality. [588 D, 590 C]

18. In a democracy, a wrong to some one is a wrong to every one and an unpunished criminal makes society vicariously guilty. [596 D]

19. When offences are alleged to have taken place within the prison, there should be no tinge or trace of departmental collusion or league between the police and the prison staff. [605 A] [Directives for which no specific time limit fixed except the urgency of their implementation:

1(i) The State shall take early steps to prepare in Hindi, a Prisoner’s Handbook and circulate copies to bring legal awareness home to the inmates. Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may create a fellowship which will ease tensions.

561 A prisoners’ wall paper, which will freely ventilate grievances will also reduce stress. All these are implementary of s. 61 of the Prisons Act. [601 D,E] (ii) The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategies. [601 F] (iii) The Prisons Act needs rehabilitation and the Prison Manual total over- haul. A correctional-cum- orientation course is necessitous for the prison staff inculcating the constitutional values, therapeutic approaches and tension-free management. [601 H] (iv) The prisoners’ rights shall be protected by the court by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the court such as for e.g. Free Legal Aid (Supreme Court) Society. The District Bar shall, we recommend, keep 2 cell for prisoner relief. [602 A] (Per Pathak J. concurring)

1. The prisoner Prem Chand has been tortured while in custody in the Tihar Jail. [605 D]

2. The Superintendent of the jail to ensure that no punishment or personal violence is inflicted on Prem Chand by reason of the complaint made in regard to the torture.

[605 F]

3. Pressing need for prison reform and provision for adequate facilities to prisoners, to enable them not only to be acquainted with their legal riots but also to record their complaints and grievances and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the court having jurisdiction. [605 G]

4. Imperative that District Magistrates and Sessions Judges should visit the prisons in their jurisdiction and afford effective opportunity to the prisoners for ventilating their grievances and where the matter lies within their powers, make expeditious enquiry and take suitable remedial action. [605 H]

5. Sessions Judge should be informed by the jail authorities of any punitive action taken against a prisoner within two days of such action. [606 A]

6. A statement by the Sessions Judge in regard to his visits, enquiries made and action then thereon shall be submitted periodically to the High Court to acquaint it with the conditions prevailing in the prisons within its jurisdiction. [606 B]

ORIGINAL JURISDICTION: Writ Petition No. 1009 of 1979.

Under Article 32 of the Constitution.

Dr. Y. S. Chitale and Mukul Mudgal for the Petitioner.

Soli 1. Sorabjee, Solicitor General of India, and R. N.

Sachthey for the Respondent.

562 The Judgment of V. R. Krishna Iyer and O. Chinnappa Reddy, JJ. was delivered by Krishna Iyer, J. R. S. Pathak, J. gave a separate opinion.

KRISHNA IYER, J.-This, writ petition originated, epistolary fashion in a letter by a prisoner, Batra, to a Judge of this’ Court (one of us), complaining of a brutal assault by a Head Warder on another prisoner, Prem Chand.

Forms were forsaken since freedom was at stake and the letter was posted on the Bench to be metamorphosed into a habeas proceeding and was judicially navigated with electric creativity, thanks to the humanist scholarship of Dr. Y. S.

Chitale as amicus Curiae and the erudite passion for affirmative court action of Shri Soli Sorabjee, the learned Solicitor General. Where the prison process is dehumanized, forensic help, undeflected by the negative crudities of the adversary system, makes us dare where we might have daunted.

The finest hour of justice comes when court and counsel constructively collaborate to fashion a relief in the individual case and fathom deeper to cure the institutional pathology which breeds wrongs and defies rights. Here, the individual is a prisoner whose anus was allegedly pierced with a warder’s baton and the institution is the Tihar Prison, right in the capital of the country and under the nose of the Home Ministry.

The Perspective This case is revelatory of several sins in this central penitentiary. ‘Something is rotten in the State of Denmark !’ The constitutionaI imperative which informs our perspective in this habeas corpus proceeding must first be set out. The rule of law meets with its Waterloo when the State’s minions become law-breakers and so the court, as the sentinel of the nation and the voice of the Constitution, runs down the violators with its writ and secures compliance with human rights even behind iron bars and by prison warders. This case is at once a symptom, a symbol and a signpost vis a vis human rights in prison situations. When prison trauma prevails, prison justice must invigilate and hence we broaden our ‘habeas’ jurisdiction. Jurisprudence cannot slumber when the very campuses of punitive justice witness torture.

The petitioner does not seek the release of the prisoner because a life sentence keeps him in confinement.

But the dynamic role of judicial remedies, after Batra’s case, imparts to the habeas corpus writ a versatile vitality and operational utility that makes the healing presence of the law live up to its reputation as bastion of liberty even within the secrecy of the hidden cell. Blackstone called it ‘the 563 great and efficacious writ in all manner of illegal confinement’ and Lord Deman proclaimed in 1839 that it had been ‘for ages effectual to an extent never known in any other country’. So long as Batra remains good law, judicial policing of Bastille practices will broaden to embrace the wider range of prison vices. Dr. Chitale drew our attention to American legal literature disclosing the trend while Shri Soli Sorabjee for the Union of India, cited Corwin. Corwin’s remarks on American constitutional law, referred to with approval in Batra, has our assent:

Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the extent to which the ills that plague so-called correctional institution overcrowding, understaffing unsanitary facilities, brutality, constant fear of violence, lack of adequate medical and mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or non-existent rehabilitative and/or educational programs, deficient recreational opportunities-violate the Eighth Amendment ban on “cruel and unusual punishments.” The essence of the matter is that in our era of human rights consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability. We ideologically accept the words of Will Durant(a). “It is time for all good men to come to the aid of their party, whose name is civilization.” Likewise, we endorse, as part of our constitutional thought, what the British Government’s White Paper, titled ‘People in Prison’, stated with telling effect:

A society that believes in the worth of individual beings can have the quality of its belief judges, at least in part, by the quality of its prison and probate services and of the resources made available to them.

The learned Solicitor General brought this key-note thought to our notice in the matchless diction of Sir Winston Churchill and briefly referred to in Batra in a speech seventy years ago:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate 564 recognition of the rights of the accused, and even of the convicted criminal, against the State-a constant heart searching by all charged with the duty of punishment a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards the discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it in the heart of every man. These are the symbols, which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.

Truly, this is a perspective-setter and this is also the import of the Preamble and Art 21 as we will presently see.

We are satisfied that protection of the prisoner within his rights is part of the office of Art.

`Prisons are built with stones of law’ and so it behoves the court to insist that, in the eye of law, prisoners are persons, not animals, and punish the deviant ‘guardians’ of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials ‘dressed ill a little, brief authority’, when Part III is invoked by a convict. For when a prisoner is traumatized, the Constitution suffers a shock.

And when the Court takes cognizance of such violence and violation, it does, like the. Hound of Heaven, ‘But with unhurrying chase, And unperturbed pace, Deliberate speed, and Majestic instancy’ follow the official offender and frown down the outlaw adventure.

The Facts What are the facts which have triggered off this judicial action ? The resume of facts, foul on its face, reveals the legal issues raised, brings into focus the basics of prisoner’s rights and helps the court forge remedial directives so as to harmonize the expending habeas jurisprudence with dawning horizons of human rights and enlightened measures of prison discipline. Batra, a convict under death sentence lodged in the Tihar Central Jail, came to know of a crime of torture practised upon another prisoner, Prem Chand, allegedly by a jail warder, Maggar Singh, as a means to extract money from the victim through his visiting relations. Batra braved the consequences of Jail indignation 565 and brought the incident to the ken of the Court, resulting in these proceedings which, though not strictly traditional, are clearly in the nature of habeas corpus writs and therefore, within the wider sweep of Art. 32. The court issued notice to the State and the concerned officials, appointed Dr. Y. S. Chitale and Shri Mukul Mudgal as amicus, authorised them to visit the prison, meet the prisoner and see relevant documents and interview necessary witnesses so as to enable them to inform themselves about the surrounding circumstances and the cruel scenario of events. Counsel on both sides have sensitized the issue of prison justice admirably and catalysed the cause of jail reforms effectively. The democratic hope of the procession is its ‘people’s orientation, not its lucrative potential nor its intellectual intricacies. And service in the field of the handicapped human sectors, like prisoners, is a social justice contribution. The enthusiastic work done in the case by the young lawyer, Shri Mudgal, assisting Dr. Chitale, deserves our commendation, even as the unreserved support rendered to the Court by Shri Sachthey is in the good tradition of the Bar.

Back to the facts. One Central episode round which the skein of further facts is wound is beyond doubt, viz. that Prem Chand, the prisoner, sustained serious anal injury on or about August 26, 1979, because a rod was driven into that sore aperture to inflict inhuman torture. The contemporaneous entry in the Jail Hospital register reads:

One prisoner Prem Chand s/o Pyara Lal has developed tear of anus due to forced insertion of stick by someone,. He require surgical repair and his bleeding has not stopped. He is to go to Irwin Hospital casualty immediately.

Remarks of Superintendent. Noted 27 August, 79 sd D.S.

1.2.35 p.m.

Sd/- (DR. KAPOOR) 2.00 p.m.

The prisoner’s later narration to the doctor in the Irwin Hospital corroborates the case. The unsuccessful and unworthy attempts, presumably by overawing the prisoner and even the doctor, and other dubious devices. which we do not now scan, to do away with this G. primary incriminating factor by offering incredible alternatives like rupture of the anus by a fall or self-infliction or due to piles and sillier stories, only show how the subtle torture of the officials could extract falsehoods from the victim and even medical officers, exclupatory of the, official criminal whoever he be. There are some traces of attempts to hush up tho crime where the higher officers have not been that innocent. We are taken aback that the tardy police investigation, 566 with its lethargic pace and collusive ways, has hardly done credit to the Police Department’s integrity, a fact that the Government will take note of, without institutional sheltering of police delinquents. Imagine a police investigator, hunting for contradictions obviously to absolve the head warder by interrogating Dr. Kapoor who had made an entry in the hospital register and told Dr. Chitale that the prisoner had an anal rupture which could not be self-inflicted or caused by a fall and was so serious as to require immediate removal to Irwin Hospital, and making him say, long afterwards on 2-10-1979 by delaying the laying of the chargesheet thus:

“A prisoner named Prem Chand s/o Prehlad was produced before me for treatment on the afternoon of Sunday 26th August, 1979. He was brought by some warder.

He was complaining of bleeding from boils on the buttocks. This was also told by the warder who brought him.

He was given the required treatment as he was kept under observation on his request.

Next day during the ward rounds when I examined him, he was having tears of anus and bleeding. On inquiring he told that this has happened due to forced insertion of as stick into his anus.

Then he was referred to Irwin Hospital for further treatment.

V. K Kapoor 2-10-79” Can human nature be such rubber ? More than the probity of the investigation and the veracity of the doctor are at stake-hope in human integrity without which human dignity will be the first casualty.

These observations are not impressionistic but we leave it at that since our primary purpose is to protect the person of the prisoner, not to prosecute the offender. We do nat wish to prejudice that process. Regrettably, the ‘hearsay’ affidavit of the Under Secretary (Home), Delhi Administration, Shri Nathu Ram, blinks at the jail vices and merely dresses up the official version without so much as an inquisitorial audit of the lurid happenings in a premier correctional institution of the nation. We deplore the indifferent affiants omnibus approval of every official conduct, whereas we should, instead have expected Government, which sincerely swears by human rights and whose political echelons in succession, over the decades, are not strangers to the actualities in these detention campuses to have put 567 aside the tendency to white-wash every action with an official flavour. A Where human rights are at stake prestige has no place.

After the prisoner was subjected to brutal hurt he was removed to the jail hospital and later to the Irwin Hospital but on his re-transfer he was neglected; but we do not pursue the identity of the culprit or the crime or the treatment since a police investigation is under way.

Nevertheless, we cannot but remark that whatever damage might have been done upto now, .. second investigation by a C.B.I. Officer is justified, if truth has been suppressed.

Dr. Chitale pointed out certain poignant facts such as the prisoner himself having been pressured into statements contrary to the case of anal infliction. We do not make comments on them although we are unhappy at the way the business of investigation has been done. Indeed, the potential for oblique mutual help between the police and the prison staff makes Jail offences by jail officials undetectable; and so, to obviate this possibility, the C.B.I. may well be entrusted, as a regular practice, with such cases The prisoner being a person, we cannot write him off.

The alleged offender, Warder Maggar Singh, may be left aside for a while. There are other aspects of the torture which demand deeper probe and panacea. The prisoner’s explanation for the anal rupture is stated to be an unfulfilled demand for money, allegedly a general practice.

this shows, if true, that bribery, at the point of barbarity, is a flourishing trade within the house of punishment itself. How stern should the sentence be for such official criminals and how diligent should the State be to stamp out this wicked temptation ! If you want to end prison delinquencies you must abolish the motivations and opportunities.

The counter-case, if we may so call it, of the Warder as disclosed in the Superintendents report, is equally disturbing, if true:

On 25-8-79 evening life prisoner Prem Chand S/o Sh. Prahlad was produced before the Deputy Superintendent for talking Mandrix tablets. As he was in state of intoxication because of taking Mandrix tablets which he admitted before the Deputy Superintendent, he was kept in a cell pending orders of the Superintendent. Central Jail. He was taken to the jail hospital the next day i.e. On 26-8-79 on a report from the above said prisoner as he had pain in his anus and was bleeding. The prisoner remained admitted into the jail hospital upto 27-8-79, 2 p.m. when the Dr. V.

K. Kapoor, Medical officer, recommended for the shifting of this prisoner to the Irwin Hospital with the report mentioned in the petition.

568 The prisoner Prem Chand was shifted accordingly by Shri Bachan Singh, Assistant Superintendent on duty on 27-8-

79. The undersigned was informed that a case u/s 385 IPC had been registered against warder Maggar Singh in- charge of the ward No. 11 i.e. 40 cells with the police station Janak puri and investigation had started in this case. The result of the investigation is still awaited. The prisoner was, however, received back in the jail on 29-8-79 on being discharged from the Irwin Hospital.

The prisoner, Prem Chand, was kept in a ‘punishment cell’ which, according to counsel for the Administration, was not as bad as a solitary cell, although Dr. Chitale says that this was similar to the type of insulated confinement condemned as unconstitutional be this Court in Sunil Batra’s case (supra). Coming to the competing version put for ward by the prison officials through the counter-affidavit of the Under Secretary, the story, even if true, is strongly suggestive of a mafia-culture prevasive in the Tihar prison.

A background of the ethos of the campus may be gleaned from portions of the report of the Superintendent, Central Jail, Tihar, made by him with reference to the alleged torture which is the subject matter of this case.

A number of prisoners in the Tihar Jail are habitual offenders, professional criminals who have been inmates of the jail from time to time. A number of the said prisoners are rarely visited by their relatives due to the fact that they do not want to associate with such persons. It has been seen that such prisoners are mainly visited by other professionals or habitual offenders in the field with whom they have had former associations…. It has been noticed these types of prisoners have been able to develop a certain report with some of the lower staff in the jail namely Head Warders, Warders etc. and obtain certain facilities illegally including smuggling of numbers of items, i.e.

drugs etc. for their use. It may also be submitted that to check smuggling of narcotic drugs against prisoners who indulge in such activities 30 cases of narcotic offences were get registered against the prisoners with the Janakpuri Police Station during this year…. That 95 prisoners were transferred from the jail to Haryana due to administrative reasons which include indiscipline and violation of jail regulations by them and otherwise derogatory behaviour during the last year. This year also about 22 case have been recommended by Superintendent, Jail for transfer ….

In para 568(b) and the note thereunder of the 569 Jail Manual, the habituals are required to be kept separate from the casual prisoners but due to non- availability, of any other jail in Delhi they are being kept in Tihar Jail, which requires a lot or vigilance on the part of the jail officers. (b) It may also be mentioned that due to paucity of accommodation, the said jail is occupied by double the number of prisoners than it is otherwise authorised.

To aggravate the malady, we have the fact that a substantial number of the prisoners are under-trials who have to face their case in court and are presumably innocent until convicted. By being sent to Tihar Jail they are, by contamination, made criminals-a custodial perversity which violates the test of reasonableness in Art. 19 and of fairness in Art. 21. How cruel would it be if one went to a hospital for a checkup and by being kept along with contagious cases came home with a new disease ! We sound the tocsin that prison reform is not a constitutional compulsion and its neglect may lead to drastic court action.

It would appear that around 300 persons are taken in and out daily between the prison and the courts. And when there arc political agitations. and consequent police arrests and remand to custody, the under-trial strength swells in numbers. Since many officers busy themselves with production of prisoners in court, the case of the Superintendent is that the other prisoners “try to do mischief, make thefts of other prisoners who go on work, smuggle things and even resort to assaults.” To sum up, the Tihar prison is an arena of tension ,trauma, tantrums and crimes of violence, vulgarity and corruption. And to cap it all, there occurs the contamination of pre-trial accused with habituals and “injurious prisoners of international gang.” The crowning piece is that the jail officials themselves are allegedly in league with the criminals in the cells. That is, there is a large network of criminals, officials and non-officials in the house of correction ! Drug racket, alcoholism, smuggling, violence, theft, unconstitutional punishment by way of solitary cellular life and transfers to other jails are not uncommon. The Administration, if it does not immediately have the horrendous situation examined by an impartial, authoritative body, and sanitize the campus, complacent affidavits of Under Secretaries and glittering entries from dignitaries on their casual visits, cannot help.

While the Establishment sought to produce before the Court extracts from the Visitors’ Book to show that many impartial and distinguished persons had complimented the jail authorities on the way managed the prison, Dr. Chitale placed before us some internal evidence 570 from the materials on record, supplemented strongly by personal observations recorded while he was an internee in this very prison by Shri Kuldip Nayar, a responsible journalist with no apparent motive for mendacity nor inclination for subjectivity, in his book “In Jail”. There was nothing in the author’s view which money could not buy within the recesses of the prison campus. Giving a factual narrative, Shri Nayar wrote:…………………………..

‘ ……. one could get as much money as one wanted from outside-again at a price. There was a money order and mail service that perhaps was more dependable than what the postal department could offer.

For instance, when a prisoner in my ward wanted two hundred rupees, he sent a note through a warder to his people in old Delhi and in less than twenty-four hours he had the money. He paid sixty-six rupees as collecting charges-thirty-three per cent was the prescribed “money order charge.” .. ….Dharma Teja, the shipping magnate who served his sentence in Tihar, for instance, has thousands of rupees delivered to him, we were told. And if one could pay the jail functionaries one could have all the comforts one sought. Teja had all the comforts-he had an air cooler in his cell a radio-cum-record player set and even the facility of of using the phone…. Haridas Mundhra, a businessman who was convicted of fraud, was another rich man who spent some time in Tihar. Not only did he have all. the facilities, but he could also go out of the jail whenever he liked; at times he would be out for several days and travel even upto Calcutta. All this of course, cost a lot of money. An even richer prisoner was Ram Kishan Dalmia, he spent most of his jail term in hospital. He was known for his generosity to jail authorities, and one doctor received a car as a gift.

But more than businessmen it was the smugglers jailed in Tihar who were lavish spenders. Their food came from Moti Mahal and their whisky from Connaught Place. They had not only wine but also women “Babuji, not tarts but real society girls,” one warder said. The women would be brought in when “the Sahiblog” went home for lunch, and their empty offices became “recreation rooms.” Corruption in jail was so well organised and so systematic that everything, went like clockwork once the price had been paid. Jail employees at almost all levels were involved, and everyone’s share was fixed. There was never a dispute; there has to be the proverbial honour among thieves.’ 571 One wonders whether such an indictment made by an established A writer had inclined the Government at least to appoint an Inquiry Commission to acquaint itself with the criminal life-style of correctional institutions. The higher officials also have their finger in the pie, if Nayar were veracious:

‘Perhaps the way almost everyone had his cut was most evident in our milk supply. It came in bulk to the main gate (phatak) there, enough milk for the top officials was taken out of the cans, which were then topped up with water. And as the cans moved to the wards, all those who handled hem appropriated their share, again topping up with water.

Even more shocking than the corruption was the ingenious “slave system” we found in the jail. The slaves were buys between ten and eighteen employed as ‘helpers”, and there were scores of them. They cooked, washed utensils, cleaned rooms, fetched water and did much back breaking labour to “help” the men who were paid to do these chores. They would be woken up before 6 a.m. to prepare the morning tea and would be allowed to sleep around 10 p.m. after scrubbing the pots and pans-they were herded into a ward which had no fan and no proper sanitary facilities, but was always well lit, with many bulbs on all night, to enable a sleepy warder to check at a glance that they were all there.

These boys were undertrial prisoners, many had been there for eight months and at least one had been there for two years. They were taken from one court to another to be tried under one charge or another and kept in jail all the while. The aim was to keep them in as long as possible, for without them the people employed to do the menial duties would have no time to relax.

one morning I was woken up by the sobbing of a boy, and found some other “helpers” trying to console him while a warder stood by quite unmoved. I went up to him; his curly hair reminded me of Raju, my younger son. The boy had been picked up the previous evening from Defence Colony in New Delhi, kept in a police lock-up for the night and brought to jail in the morning.’ The crime of punishment is a new crime which the rule of law must reach at, but what is touching beyond tears, even if there be but a title of truth in the statement “In Jail,” is about children being lapped 572 up and locked up for use as bonded labour in punitive houses of justice. The modus operandi is sensitively set down by Kuldip Nayar:

The warder explained that whenever the number of prisoners in jail went up, the police were asked to bring in boys to help with the chores. For the past several days, the warder said, jail authorities had been pestering the police to get more helpers as the number of detenus had gone up. The evening before, when the boy was buying paan (betel leaf) from a Defence Colony shop, the police had hauled him up as a vagabond; they were responding to the jail authorities’ appeal to book more helpers.

“This is nothing new, it has always been like this,” the warder explained. Several undertrial boys later related to me their tales of woe, how they were arrested on trumped up charges and how they were being held in detention on one pretext or another.

We may, at this stage, go in greater detail into the functional expansion of habeas corpus writs in the current milieu especially because counsel on both sides have compellingly contended for an authoritative pronouncement by this court in favour of a broader jurisdiction.

We have earlier noticed that this valuable writ is capable of multiple uses as developed in the American Jurisdiction. Such is the view expressed by many legal writers. In Harvard Civil Rights and Civil Liberties Law Review, the view has been expressed that beyond the conventional blinkers, courts have been to examine the manner in which an inmate is held or treated during the currency of his sentence. Similar is the thinking expressed by other writers, R. J. Sherpa in “The Law of Habeas Corpus” (1976) Edn. Juvenal, Satires in 72 Yale Law Journal 506 (1963). In American Jurisprudence there is a pregnant observation:

The writ is not and never has been a static, narrow formalistic remedy. Its scope has grown to achieve its purpose-the protection of individuals against erosion of the right to be free from wrongful restraints on their liberty.

573 Corpus Juris, 2d, Vol. 39, page 274, para 7 strikes a similar note, away from the traditional strain. The courts in America have, through the decisional process, brought the rule of law into the prison system pushing back, protanto, the hands-off doctrine. In the leading case of Coffin v.

Richard the Court of Appeal observed, delineating the ambit and uses of the writ of habeas corpus:

The Government has the absolute right to hold prisoners for offences against it but it also has the correlative duty to protect them against assault or injury from any quarter . while so held. A prisoner is entitled to the writ of habeas corpus, when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits.

When a man possesses a substantial right, the court will be diligent in finding a way to protect it.

The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights….The judge is not limited to a simple remand or discharge of the prisoner’s civil rights be respected……

It is significant that the United State Supreme Court has even considered as suitable for habeas relief, censorship of prisoners’ mail and the ban on the use of law students to conduct interviews with prison inmates in matters of legal relief. In Procunier v. Martinez these two questions fell for decision and the court exercised jurisdiction even in such an internal matter. In Johnson v.

Avery a disciplinary action was challenged by a prisoner through a writ of habeas corpus. This indicates the extension of the nature of the writ in the American jurisdiction. Incidentally and interestingly, there is reference to some States in the United States experimenting with programmes of allowing senior law students to service the penitentiaries. At a later stage, when we concretise definite directives, we may have occasion to refer to the use of senior law students for rendering legal aid to prisoners; and so it is worthwhile extracting a passage from Johnson v. Avery (supra) with reference to the Kansas Law School Programme in Prisons at Leavenworth:

The experience at Leavenworth has shown that there have been very few attacks upon the (prison) administra- :

574 tion; that prospective frivolous litigation has been screened out and that where the law school felt the prisoner had a good cause of action relief was granted in a great percentage of cases. A large part of the activity was disposing of long outstanding detainers lodged against the inmates. In addition, the programme handles civil matters such as domestic relations problems and compensation claims. Even where there has been no tangible success, the fact that the inmate had someone on the outside listen to him and analyse his problems had a most beneficial effect. We think that these programmes have been beneficial not only to the inmates but to the students, the staff and the courts.

Incidentally, the presence of law students at the elbow of the prisoner has a preventive effect on ward and warden.

The content of our constitutional liberties being no less, the dynamics of habeas writs they developed help the judicial process here. Indeed. the full potential of Arts.

21, 19, 14, after Maneka Gandhi (supra), has been unfolded by this Court in Hoskot and Batra. Today, human rights jurisprudence in India has a constitutional status and sweep, thanks to Art. 21 so that this Magna Carta may well toll the knell of human bondage beyond civilised limits.

The supplementary statement of the Superintendent of the Central Jail (partly quoted earlier) hair-raising when we find that far from rehabilitation, intensification of criminality is happening there and the officials are part of this sub-culture. We, certainly do not wish to generalise but do mean to highlight the facts of life behind the high walls as demanding constitutional and administrative attention. Homage to human rights, if it springs from the heart, calls for action. Prisons, prison staff and prisoners-all three are in need of reformation. And this milieu apparently is not unique to Tihar but common to many penal institutions.

It is refreshing and heartening that the learned Solicitor General widened our vista and argued that this court, having been seized of the problem of prisoners’ fundamental freedoms and their traumatic abridgement, should give guide-lines in this uncharted area, design procedures and device mechanisms which will go into effective action when the restricted yet real rights of prisoners are overtly or covertly invaded. The jurisdiction of this court to remedy the violations of prisoners’ residuary rights was discussed at the bar, as also the package of plausible measures which may appropriately be issued to ensure the functional success of justice when rights are infringed by officials or fellow-prisoners. Both sides appreciated the gravity of the jail situation, the sensitivity of security considerations, the virginity of this 575 field of law and the necessity for normative rules and operative monitoring within the framework of judicial remedies. This constructive stance of counsel unusual in litigative negativity, facilitated our resolution of the problems of jail justice, despite the touch of jurisprudential novelty and call to judicial creativity.

We must formulate the points argued before we proceed to state our reasoning and record our conclusions.

1. Has the court jurisdiction to consider prisoners’ grievance, not demanding release but, within the incarceratory circumstances, complaining of ill-treatment and curtailment short of illegal detention? Yes. We have answered it.

2. What are the broad contours of the fundamental rights, especially Arts. 14, 19 and 21 which belong to a detainee sentenced by Court? Here too, the ground has been covered.

3. What judicial remedies can be granted to prevent and punish their breach and to provide access to prison justice?

4. What practicable prescriptions and proscriptions bearing on prison practices can be drawn up by the court consistently with the existing provisions of the Prisons Act and Rules bent to shape to con form to Part III ?

5. What prison reform perspectives and strategies should be adopted to strengthen, in the long run, the constitutional mandates and human rights imperatives? The canvas was spread wide by counsel and court and we deal with the arguments within the larger spread-out of the case. Rulings of this court have highlighted the fact that the framers of our Constitution have freed the powers under Art. 32 from the rigid restraints of the traditional English writs. Flexible directives, even affirmative action moulded to grant relief may realistically be issued and fall within its fertile width. The jurisdictional dimension is lucently laid down by Subba Rao, J. in Dwarkanath case:

This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found.

The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the 576 expression “nature” for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.

Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relieve, this court will be a functional futility as a constitutional instrumentality if its guns do not go into action until the wrong is righted. The court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope. We hold that the court can issue writs to meet the new challenges. Lord Scarman’s similar admonition, in his English Law-The New Dimensions, is an encouraging omen. The objection, if any, is absolute because in a prison situation, a Constitution Bench of this Court (Batra and Sobraj) did imprison the powers of prison officials to put an under-trial under iron fetters or confine in solitary cells convicts with death sentences under appeal.

Once jurisdiction is granted-and we affirm in unmistakable terms that the court has, under Art. 32 and so too under Art. 226, a clear power and, therefore, a public duty to give relief to sentences in prison settings-the next question is the jurisprudential backing for the play of that jurisdiction. Here again, Batra has blazed the trial, and it binds.

Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognises rights of prisoners in the International Covenant of Prisoners’ Rights to which our country has signed assent. In Batra’s case, this Court has rejected the hands-off doctrine and it has been ruled that fundamental n lights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. Our constitutional 577 culture has now crystalized in favour of prison justice and judicial jurisdiction.

The jurisdictional reach and range of this court’s writ to hold prison caprice and cruelty in constitutional leash is in contentable, but teasing intrusion into administrative discretion is legal anathema absent breaches of constitutional rights or prescribed procedures.

The U.S. Supreme Court, in like situations, has spoken firmly and ‘humanistically, and these observations have the tacit approval of our Court in Batra’s case. Justice Douglas put it thus.

Prisoners are still ‘persons’ entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process.

Justice Marshal strongly seconded the view:

I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court’s holding that the interest of inmates in freedom from-imposition of serious discipline is a ‘liberty’ entitled to due process protection.

We, therefore, affirm that where the rights of a prisoner, either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warrant for this vigil. The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. In a few cases, this validation of judicial invigilation of prisoners’ condition has been voiced by this court and finally reinforced by the Constitution Bench in Batra (supra).

The Court need not adopt a “hands off” attitude in regard to the problem of prison administration. It is all the more so because a convict is in prison under the order and direction of the court.” Under the caption “Retention of Authority over Prisoner by Sentencing Judge” Krantz notes 578 As noted by Judge Lay in a Judicial Mandate, Trial Magazine (Nov-Dec. 1971) at p. 15:

It should be the responsibility of the court in imposing the sentence to set forth as it would in any equitable decree, the end to be achieved and the specifics necessary to achieve that purpose. If then, we are to have accountability in the execution of the sentence, courts must make clear what is intended in the imposition of the sentence. Every sentence should be couched in terms similar to a mandatory injunction.

In this manner, the penology system is to be held to account if the government does not faithfully execute the order.

In other words, the sentencing court should be required to retain jurisdiction to ensure that the prison system res ponds to the purposes of the sentence. If it does not, the sentencing court could arguably have the authority to demand compliance with the sentence or even order the prisoner released for non-compliance.

Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods ‘right, just and fair’. Bhagwati J. in Maneka Gandhi observed.

The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Hoskot applied the rule in Maneka Gandhi (supra) to a prison setting and held that “one component of fair procedure is natural justice”. Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through ‘writ’ aid. The Indian human has a constant companion-the court armed with the Constitution. The weapon is ‘habeas’, the power is Part III and the projectile is Batra, 579 No iron curtain can be drawn between the prisoner and the Constitution.

It is, therefore, the court’s concern, implicit in the power to deprive the sentences of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical R; infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the. sentence the Prison Establishment will be called to order For such adulteration or dilution of Court sentences by executive palliation, if unwarranted by law. One of us, in Batra observed:

Suffice it to say that, so long as judges are invigilators and enforcers of constitutionality and performance auditors of legality, and convicts serve terms in that grim microcosm called prison by the mandate of the courts, a continuing institutional responsibility vests in the system to monitor in the incarceratory process and prevent security ‘excesses’ Jailors are bound by the rule of law and cannot inflict supplementary sentence under disguises or defeat the primary purposes of imprisonment.

The upshot of this discussion is but this. The Court has power and responsibility to intervene and protect the prisoner against mayhem, crude or subtle, and may use habeas corpus for enforcing imprison humanism and forbiddance of harsher restraints and heavier severities than the sentence carries. We hold these propositions to be self-evident in our constitutional order and is supported by authority, if need be. Therefore, we issue the writ to the Lt. Governor and the Superintendent of the Central Jail that the prisoner, Prem Chand, shall not be subjected to physical manhandling by any jail official, that the shameful and painful torture to which he has been subjected-a blot on Government’s claim to protect human rights-shall be ended and the wound on his person given proper medical care and treatment. The Central Government will, we are sure, direct its Jail staff not show too pachydermic a disposition for a democratic government. For example, specific guidelines before punishing a prisoner had been given in Batra’s case and yet the prisoner Prem Chand has been lodged in the punishment cell, which is almost the same as a solitary cell, with cavalier disregard for procedural safeguards.

Merely to plead that many prisoners are ‘habituals’ is no ground for habitual 580 violation of law by officials. We direct that Prem Chand be released from the punishment cell and shall not be subjected to such severity until fair procedure is complied with.

The chronic callousness of the Prison System to- the humane demands of the Constitution, despite the fact that many ministers over many decades in many States have known the unbroken tradition of prison sub-culture and despite prison diaries of national figures from Jawaharlal Nehru to Jay Prakash Narain, has made court and counsel benignly turn the judicial focus on the future so that further mischief may not be suffered in incarceration. There is little doubt that barbarities like bar betters and hand-cuffs were recklessly being practised either on account of ignorant unconscionableness or willful viciousness in several detention camps. Many of the victims are poor, mute, illiterate, desperate and destitute and too distant from the law to be aware of their rights or ask for access to justice, especially when the running tension of the prison and the grisly potential for zoological reprisals stare them in the face. So it is for the court to harken when humanity calls, without waiting for particular petitions. Like class action, class remedies have pro bono value.

The court-the learned Solicitor General underscored this constructive approach-must not wait for a stray petition from some weeping inmate and give the little person a little relief in the little case but give the nation, its governments, prison establishments and correctional departments, needed guidance and also fill with hope the hearts of those who cherish human rights that the courts are, after all, sentinels on the qui vive. Law is what law does and court, if anything, are constitutional in action.

Dr. Chitale, naturally, joined this moving demand. We do think that there are many, drawn from the class of penury, who suffer more privations than their sentences justify.

Ralph Ellison’s picture of the American Black has relevance for the prisoner here:

I am an invisible man….I am a man of substance, of flesh and bone, fibre an liquids-and I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me …. When they approach me they see only my surroundings, themselves, or figments of their imagination-indeed, everything and anything except me.

The invisibility to which I refer occurs because of a peculiar disposition of the eyes of those with whom I come in contact. A matter of construction of their inner eyes, 581 those eyes with which they look through their physical eyes .. 4 upon reality….You wonder whether you are not simply a phantom in other people’s minds….You ache with the need to convince yourself that you do exist in the real world, that you’re a part of all the sound and anguish, and you strike out with your fists, you curse and you swear to make them recognise you.

And, alas, it is seldom successful.

In a culture of Antyodaya, the court must rescue the weakest by preemptive guidance without driving parties to post facto litigation. In law as in medicine, prevention is better than cure, a rule jurisprudents have not sufficiently developed, and so we accede to the request of counsel and proceed to discuss the normative side of prison justice. C Before we begin this chapter we might as well set down what the learned Solicitor General stressed viz. that the detailed guidelines set out in the separate opinion in Batra’s case (page 488 to 493) are the same as are implicit in the judgment of Desai J. speaking for the other Judges and this position should be re-emphasised by this court here so as to avoid misconception. Desai J. has stated Justice Krishna Iyer has delivered an elaborate judgment which deals with important issues raised before us at great length and with great care and concern. We have given a separate opinion, not because we differ with him on fundamentals, but because we thought it necessary to express our views on certain aspects of the questions canvassed before us Likewise, in the separate judgment, a similar statement is made:

I am aware that a splendid condensation of the answers to the core questions has been presented by my learned brother Desai, J and I endorse the conclusion.

A close perusal shows that both the judgments in Batra’s case lay down the same rule and the elaborate guidelines in the first opinion are a necessary proliferation of the law expounded in the second judgment in the case. We hold, agreeing with both counsel, that the detailed prescriptions in the separate opinion in sunil Batra (p. 488 to 493) is correct law and binds the penal institutions in the country. We agree with these guidelines and express ourselves to that effect since the core question raised in the present case and the cardinal principles we have accepted lead to the same conclusions.

At the outset, we notice the widespread prevalence of legal illiteracy even among lawyers about the rights of prisoners. Access to law postulates awareness of law and activist awareness of legal rights 582 in the condition for seeking court justice. So the first need in the Juristic twilight is for the State to produce and update a handbook on Prison Justice, lucid, legible for the lay, accurate, comprehensive and, above all, practical in meeting the felt necessities and daily problems of prison life. The Indian Bar has, as part of its judicare tryst as a special responsibility to assist the State in this behalf. A useful handbook prepared by the American Civil Liberties Union was handed upto us by Dr. Chitale titled “The Rights of Prisoners”. Law in the books and in the courts is of no help unless it reaches the prisoner in under standable language and available form. We, therefore, draw the .

attention of the State to the need to get ready Prisoner’s Handbook in the regional language and make them freely available to the in mates. To know the law is the first step to be free from fear of unlaw.

Prisoners are peculiarly and doubly handicapped. For one thing, most prisoners belong to the weaker segment, in poverty, literacy, social station and the like. Secondly, the prison house is a walled-off world which is incommunicado for the human world, with the result that the bonded inmates are invisible, their voices inaudible, their injustices unheeded. So it is imperative, as implicit in Art. 21 that life or liberty shall not be kept in suspended animation or congealed into animal existence without the freshing flow of air, procedure. ‘The meaning of ‘life’ given by Field J., approved in Kharak Singh’ and Maneka Gandhi bears exception:

Something more than mere animal existence. The inhibition against its deprivation extended to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm. Or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world Therefore, inside prisons are persons and their personhood, if crippled by law-keepers turning law-breakers, shall be forbidden by the Writ of this Court from such wrong doing. Fair procedure, in dealing with prisoners, therefor, calls for another dimensions of access to law-provision, within easy reach, of the law which limits liberty to persons who are prevented from moving out of prison gates.

A handbook meets the logistics of the law in field. Of course, the prison staff also suffer from the pathology of misinformation or non-education about rights and limitations and this ignoratia juris 583 situation leads to insensitivity to human rights and a test in the hand-book of prison law must be a minimum for recruitment. The peril to prison rights is from the uninstructed personnel, apart from the anticultural ethos which permeates. It behoves Government to insist on the professional requirement, for warders and wardens, of a hearty familiarity with the basics of Prison Law.

Rights jurisprudence is important but becomes an abstraction in the absence of remedial jurisprudence. Law is not an omnipotence in the sky but a loaded gun which, when triggered by trained men with ballistic skill, strikes the offending bull’s eye. We have made it clear . ‘ that no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self- expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment.

Chandrachud J, long ago, spelt out the position and we affirm it:

“Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India 11 or the right to ‘practise’ a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration . can be no impediment.

Likewise, even a convict is entitled G to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.” We think it proper to suggest that in our country of past colonial subjection and consequent trepidation in life, publicity officially is 584 necessary for rights to be appreciated even by the beneficiaries. Therefore, large notice boards displaying the rights and responsibilities on prisoners may be hung up in prominent places within the prison in the language of the people. We are dealing with the mechanics of bringing the law within the wakeful ken of the affected persons.

Sec. 61 of the Prisons Act, simplied imaginatively leads to the same result. That section reads:

“Copies of rules, under sections 59 and 60 so far as they affect the government of prisons, shall be exhibited, both in English and in the Vernacular, in some place to which all persons employed within a prison have access.” We think it right to hold that copies of the Prison Manual shall be kept within ready reach of prisoners.

Darkness never does anyone any good and light never any harm.

Perhaps, the most important right of a prisoner is to the integrity of his physical person and mental personality.

This Court in Batra’s case has referred to the international wave of torture of prisoners found in an article entitled ‘Minds Behind Bars’. That heightens our anxiety to solve the issue of prisoners’ protection.

The problem of law, when it is called upon to defend persons hidden by the law, is to evolve a positive culture and higher consciousness and preventive mechanisms, sensitized strategies and humanist agencies which will bring healing balm to bleeding hearts. Indeed, counsel on both sides carefully endeavoured to help the Court to evolve remedial processes and personnel within the framework of the Prisons Act and the parameters of the Constitution.

Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive ineffect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Art. 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary, under Article 14, if it is dependent on unguided discretion, unreasonable, under Art. 19 if it is irremediable and unappealable and unfair, under Art. 21 if it violates natural justice. The string of guidelines in Batra set out in the first judgment, which we adopt, provides for a hearing at some stages, a review by a superior, and early judicial consideration so that the proceedings may not 585 hop from Caesar to Caesar. We direct strict compliance with those A norms and institutional provisions for that purpose.

Likewise, no personal harm, whether by way of punishment or otherwise, shall be suffered by a prisoner without affording a preventive, or in special cases, post facto remedy before a impartial, competent, available agency. R The Court is always ready to correct injustice but it is no practical proposition to drive every victim to move the court for a writ, knowing the actual hurdles and the prison realities. True, technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found; still, the awe and distance of courts, the legalese and mystique, keep the institution unapproachable.

More realistic is to devise a method of taking the healing law to the injured victim. That system is best where the remedy will rush to the injury on the slightest summons. So, within the existing, dated legislation, new meanings must be read. Of course, new legislation is the best solution, but when lawmakers take for too long for social patience to suffer, as in this very case of prison reform, courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture. Counsel rivetted their attention on this pragmatic engineering and jointly helped the court to constitutionalise the Prisons Act prescriptions. By this legal energetics they desired the court to read into vintage provisions legal remedies.

Primari1y, the prison authority has the duty to given effect to the court sentence. (See for e.g. SS. 15 and 16 of the Prisoners Act, 1900). To give effect to the sentence means that it is illegal to exceed it and so it follows that a prison official who goes beyond more imprisonment or deprivation of locomotion and assaults or otherwise compels the doing of things not covered by the sentence acts in violation of Art. 19. Punishments of rigorous imprisonment oblige the inmates to do hard labour, not harsh labour and so a, vindictive officer victimising a prisoner by forcing on him particularly harsh and degrading jobs, violates the law’s mandate. For example, a prisoner, if forced to carry night soil, may seek a habeas writ. ‘Hard labour’ in s. 53 has to receive a humane meaning. A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs. Sense and sympathy are not enemies of penal asylum.

586 Section 27 (2) and (3) of the Prisons Act states:

27. The requisitings of this Act with respect to the separations of prisoners are as follows:

(1) xx xx (2) in a prison where male prisoners under the are of twenty-one arc confined, means shall be provided for separating them altogether from the other prisoners and for separating those of them who have arrived at the age of puberty from those who have not.

(3) unconvicted criminal prisoners shall be kept apart from convicted criminal prisoners; and The materials we have referred to earlier indicate slurring over this rule and its violation must be visited with judicial correction and punishment of the jail staff.

Sex excesses and exploitative labour are the vices adolescents are subjected to by adults. The young inmates must be separated and freed from exploitation by adults. If Kuldip Nayar is right this rule is in cold storage. lt is inhuman and unreasonable to throw young boys to the sex- starved adult prisoners or to run menial jobs for the affluent or tough prisoners. Art. 19 then intervenes and shields.

Section 29 and connected rules relating to solitary confinement have been covered by Batra’s case. But Prem Chand, in this very case, has been sent to a ‘solitary’ or ‘punishment’ cell without heeding the rule in Batra’s regarding impost of punitive solitary confinement. We cannot agree that the cell is not ‘solitary’ and wonder what sadistic delight is derived by the warders and wardens by SUCH cruelty. Any harsh isolation from society by long, lonely, cellular detention is penal and so must be inflicted only consistently with fair procedure. The learned Solicitor General mentioned that some prisoners, for their own safety, may desire segregation. In such cases, written consent and immediate report to higher authority are the least, if abuse is to be tabooed.

Visit to prisoners by family and friends are a solace in insulation; and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course, to search and discipline and other security criteria, the right to society of fellow-men, parents and other family members cannot be denied in the light of Art. 19 and its sweep. Moreover the whole habilitative purpose of sentencing is to soften, not to harden, and this will be promo- 587 ted by more such meetings. A sullen, forlorn prisoner is a dangerous criminal in the making and the prison is the factory! Sheldon Krantz rightly remarks:

In 1973, the National Advisory Commission argued that prisoners should have a “right” to visitation.

Task Force Report, Corrections (1973) at 66. It also argued that ‘ correctional officials should not merely tolerate visiting but should encourage it, particularly by families. Although the Commission recognised that regulations were necessary to contend with space problems and with security concerns, it proposed that priority be given to making visiting areas pleasant and unobtrusive. It also urged that corrections officials should not eavesdrop on conversations or otherwise interfere with the participants’ privacy. Thus, although there may be current limitations on the possible use of the Constitution on visitation by family and friends, public policy should dictate substantial improvements in this area, in any event.

We see no reason why the right to be visited under reasonable restrictions, should not claim current constitutional status. We hold, t subject to considerations of security and discipline, that liberal visits by family members, close friends and legitimate callers, are part of the r prisoners’ kit of rights and shall be respected.

Parole, again, is a subject which is as yet unsatisfactory and arbitrary but we are not called upon to explore that constitutional area and defer it. Likewise, to fetter prisoners in iron is an inhumanity unjustified save where safe custody is otherwise impossible. The routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice. And yet this unconstitutionally is heartlessly popular in many penitentiaries so much so a penitent law must proscribe its use in any but the gravest situation.

These rights and safeguards need a machinery. The far internal invigilation and independent oversight cannot be overemphasised. Prisoners’ rights and prison wrongs are a challenge to remedial creativity.

Krantz, in his book, (supra) notes:

To respond to the need for effective grievance procedures will probably require both the ceation of internal pro- 588 grams (formal complaint procedures) and programs involving “outsiders” (ombudsmen, citizens investigative committees, mediators, etc).

So, apart from judicial review for prisoners’ rights and conditions of confinement, we have to fabricate instant administrative grievance procedures.

Indeed, a new chapter of offences carrying severe punishments when prison officials become delinquents is an urgent item on the agenda of prison reform; and lodging of complaints of such offences together with investigation and trial by independent agencies must also find a place in such a scheme. We are dealing with a morbid world where sun and light are banished and crime has neurotic dimensions.

Special situations need special solutions.

We reach the most critical phase of counsel’s submissions viz., the legal fabrication and engineering of a remedial machinery within the fearless reach of the weakest of victims and worked with independence, accessibility and power to review and punish. Prison power, absent judicial watch tower, may tend towards torture.

The Prisons Act and Rules need revision if a constitutionally and culturally congruous code is to be fashioned. The model jail manual, we are unhappy to say and concur in this view with the learned Solicitor General, is far from a model and is, perhaps, a product of prison officials insufficiently instructed in the imperatives of the Constitution and unawakened to the new hues of human rights. We accept, for the nonce, the suggestion of the Solicitor General that within the existing statutory framework the requirements of constitutionalism nay be read.

He heavily relies on the need for a judicial agency whose presence, direct or by delegate, within the prison walls will deal with grievances. For this purpose, he relies on the Board of Visitors, their powers and duties, as a functional substitute for a Prison ombudsman. A controllerate is the desideratum for in situ reception and redressal or grievances.

After all, the daily happenings, when they hurt harshly, have to be arrested forthwith, especially when it is the prison guards and the head warders who brush with the prison inmates. Their behaviour often causes friction and fear but when their doings are impeached, the institutional defence mechanism tends to protect them from top to bottom.

So much so, injustice escapes punishment.

In this context it is apt to quote David Rudovsky:

589 The present system puts absolute discretion and day-to-day power over every aspect of a prisoner’s life in their hands. It is this part of prison life which causes the deepest resentment among prisoners for, to a large extent, the manner in which an inmate is treated by the guards determines the severity of conditions he will have to endure. It is a doub1e irony that the lower the level of authority in prison (from warden on down to guard) the greater tho discretion that is vested in the prison official and the less willing the courts are to review their decisions. ‘Thus, whether it be a request for medical treatment, the right to go to the yard of prison library, or the potentially more serious matter of prison discipline and punishment, the guard of the block holds ultimate power over the prisoner. Complete discretion in the context of prison life where no remedies exist to correct it, can be catastrophic, Judge Sobeloff has put it bluntly:

In fact, prison guards may be more vulnerable to the corrupting influence of unchecked authority than most people. It is well known that prisons are operated on minimum budgets and that poor salaries and working conditions make it difficult to attract high-calibre personnel. Moreover, the “training” of the officers in dealing with obstreperous prisoners is but a euphemism in most states. George A. Ellis quotes a prisoner’s letter:

You cannot rehabilitate a man through brutality and disrespect…If you treat a man like an animal, then you must expect him to act like one. For every action, there is a reaction…And in order for an inmate, to act like a human being you must trust him as such.. You can’t spit in his face and expect him to smile and-say thank you.

The institution and composition of the Board of Visitors comes in handy and has statutory sanction. The visitatiorial power is wide the panel of visitors includes judicial officers and such situation can be pressed into service legally to fulfil the constitutional needs. Para 47 read with para 53-A sets out the structure of the Board Para 47(b) to (d) includes District & Sessions Judges, District Magistrates and Sub-Divisional Magistrates among the members. The functions of visitors are enumerated in para 53, and 53-B and they include (a) 590 inspect the barracks, cells, wards workshed and other buildings of the jail generally and the cooked food; (b) ascertain whether considerations of health, cleanliness, and security are. attended to, whether proper management and discipline are maintained in every respect, and whether any prisoner is illegally detained, or is detained for an undue length of time, while awaiting trial; (c) examine jail registers and records; (d) hear, attend to all representations and petitions made, by or on behalf of prisoners; and (e) direct, if deemed advisable, that any such representation or petitions be forwarded to Government.

In the sensitive area of prison justice, the judicial members have special responsibilities and they must act as wholly independent overseers and not as ceremonial panelists. The judges are guardians of prisoners’ rights because they have a duty to secure the execution of the sentences without excesses and to sustain the personal liberties of prisoners without violence on or violation of the inmates’ personality. Moreover, when a wrong is done inside jail the judicial visitor is virtually a peripatetic tribunal and sentinel, at once intramural and extra-mural,- observer, receiver and adjudicator of grievance.

What then. are prisoner Prem Chands’ rights, in the specific set t ng of this case, where the complaint is that a jail warder, for pernicious purposes, inflicted physical torture ? The Punjab Prison Manual clearly lays down the duties of District Magistrates with reference to Central Jails.

Para 41 (l) and (3) read thus:

41. (l) It shall be the duty of the Magistrate of the district from time to time to visit and inspect jails situate within the limits of his district and to satisfy himself that the provisions of the Prisons Act, 1894, and of all rules, regulations, directions and orders made or issued thereunder applicable to such jail, are duly observed and enforced.

xx xx xx (3) A record of the result of each visit and inspection made, shall be entered in a register to be maintained by the Superintendent for the purpose.

Para 42 is also relevant:

42. In the absence of the Magistrate of the district from headquarters, or in the event of that officer being at any time unable from any cause to visit the jail in the manner in these rules prescribed in that behalf, he shall depute a Magistrate 591 subordinate to him who is available for the duty, to visit and A inspect the jail on his behalf. Any officer so deputed may, subject to the control of the Magistrate of the district. exercise all or any of the powers by the Prisons Act, 1894, or these rules, conferred upon the Magistrate of the district.

Paragraph 44 clothes the District Magistrate with powers and makes his orders liable to be obeyed.

44. (1) The orders passed under sub-section (2) of section l of the Prisons Act, 1894, should, except in emergent cases in which immediate action is, in the opinion of such Magistrate necessary, be so expressed that the Superintendent may have time to refer (if he thinks necessary) to the Inspector-General before taking action thereon.

(2) All orders issued by the Magistrate of the district shall, if expressed in terms requiring immediate compliance, be forthwith obeyed and a report made, as prescribed in the said sub-section, to the Inspector-General. D We understand these provision to cover the ground of reception of grievance from prisoners and issuance of orders thereon after prompt enquiry. The District Magistrate must remember that in this capacity he is a judicial officer and not an executive head and must function as such independently of the prison executive. To make prisoners’ rights in correctional institutions viable, we direct the District Magistrate concerned to inspect the jails in his district once every week receive complaints from individual prisoners and enquire into them immediately. If he is too preoccupied with urgent work, para graph 42 enables him to depute a magistrate subordinate to him to visit and inspect the jail. What is important is that he should meet the prisoners separately if they have grievances. The presence of warders or officials will be inhibitive and must be avoided. He must ensure that, his enquiry is confidential although subject to natural justice and does not lead to reprisals by jail officials. The rule speaks of the record of the result of each visit and inspection. This empowers him to enquire and pass orders. All orders issued by him shall be immediately complied with since obedience is obligated by para 44(2). In the event of non-compliance he should immediately inform Government about such disobedience and advise the prisoner to forward his complaint to the High Court under Art. 226 together with a copy of his own report to help the High Court exercise its habeas corpus power.

Indeed, it will be practical, as suggested by the learned Solicitor General, if the District Magistrate keeps a grievance box in each 592 ward to which free access shall be afforded to every inmate.

It should be kept locked and sealed by him and on his periodical visit, he alone, or his surrogate, should open the box, find out the grievances, investigate their merits and take remedial action, it justified.

Chapter V of the Manual deals with visitors who arc an important component of jail management. Para 47 specially mentions District & Sessions Judges, District Magistrates, Sub-Divisional Magistrates and Superintendent of Police as members of the Board of Visitors. In fact, Sessions Judges arc required to visit the jails periodically-the District Magistrates and Sub Divisional Magistrates and magistrates subordinate to them and others appointed by them in this behalf are to visit jails in their jurisdiction once a week under the existing Rule. We direct, in implementation of the constitutional obligation we have already discussed at length to safeguard prisoners’ fundamental rights, that the Sessions Judges and District Magistrates or other subordinates nominated by them shall visit jails once a week in their visitorial functions.

Para 49 has strategic significance and may be reproduced:

49. (1) Any official visitor may examine all or any of the books, papers and records of any department of, and may interview any prisoner confined in the jail.

(2) It shall be the duty of every official visitor to satisfy himself that the provisions of the Prisons Act, 1894, and of the rules, regulations, orders and directions made or issued J thereunder, are duly observed, and to hear and bring to notice any complaint or representation made to him by any prisoner.

We understand this provision to mean that the Sessions Judge, District Magistrate or their nominees shall hear complaints, examine all documents, take evidence, interview prisoners and check to see if there is deviance, disobedience, delinquency or the like which infringes upon the rights of prisoners. They have a duty “to hear and bring to notice any complaint or representation made to him by any prisoner”. Nothing clearer is needed to empower these judicial officers to investigate and adjudicate upon grievances. We direct the Sessions Judges concerned, under his lock and seal, to keep a requisite number of grievance boxes in the prison and give necessary directions to The Superintendent to see that free access is afforded to put in complaints of encroachments, injuries or torture by any prisoner, where he needs remedial action. Such boxes shall hot be tampered with by any one 593 and shall be opened only under the authority of the Sessions Judge. We need hardly emphasise the utmost vigilance and authority that the Sessions Judge must sensitively exercise in this situation since prisoner’s personal liberty depends, in this undetectable campus upon his awareness, activism, adjudication and enforcement. Constitutional rights shall not be emasculated by the insouciance of judicial officers.

The prison authorities shall not, in any manner, obstruct or noncooperate with reception or enquiry into the complaints otherwise, prompt punitive action must follow the High Court or the Supreme Court must be apprised of the grievance so that habeas corpus may issue after due hearing.

Para 53 is important in this context and we reproduce it below:

53. All visitors shall be afforded every facility for observing the state of the jail, and the management thereof, and shall be allowed access under proper regulations, to all parts of the jail and to every prisoner confined therein.

Every visitor should have the power to call for and inspects any book or other record in the jail unless the Superintendent, for reasons to be recorded in writing, declines on the ground that its production is undesirable. Similarly, every visitor should have the right to see any prisoner and to put any questions to him out of the hearing of any jail officer. E There should be one visitor’s book for both classes of visitors, their remarks should in both cases be forwarded to the Inspector General who should pass such orders as he thinks necessary, and a copy of the Inspector-General’s order should be sent to the visitor concerned.

Paras 53-B and 53-D are not only supplementary but procedurally vital, being protective provisions from the stand-point of prisoners. We except them here for double emphasis although adverted to earlier:

53-B. All visitors, official and non-official, at every visit, shall- (a) inspect the barracks, cells, wards, workshed and other buildings of the jail generally and cooked food;

(b) ascertain whether considerations of health, cleanliness, and security are attended to, whether proper management and discipline are maintained in every respect, and whether any prisoner is illegally detrained, 594 Or is detained for an undue length of time, while awaiting trial;

(c) examine jail registers and records;

(d) hear, attend to all representations and petitions made, by or on behalf of prisoners;

and (e) direct, if deemed advisable, that any such representations or petitions be forwarded to Government.

53-D. No prisoner shall be punished for any statement made by him to a visitor unless an enquiry made by a Magistrate results in a finding that it is false.

We hope-indeed, we direct-the judicial and other official visitors to live upto the expectations of these two rules and strictly implement their mandate. Para 54 is also part of this package of visitatorial provisions with invigilatory relevance. We expect compliance with these provisions and if the situation demands it, report to the High Court for action in the case of any violation of any fundamental right of a prisoner.

The long journey through jail law territory proves that a big void exists in legal remedies for prisoner injustices and so constitutional mandates can become living companions of banished humans only if non-traditional procedures, duly oriented personnel and realistic reliefs meet the functional challenge. Broadly speaking, habeas corpus powers and administrative measures are the pillars of prisoners’ rights. The former is invaluable and inviolable, but for an illiterate, timorous, indigent inmate community judicial remedies remain frozen. Even so, this constitutional power must discard formalities, dispense with full particulars and demand of the detainer all facts to decide if humane and fair treatment prevails, constitutionally sufficient and comporting with the minimum international standards for treatment of prisoners. Publicity within the prison community of court rulings in this area will go a long way to restore the morale of inmates and, hopefully, of the warders. So we direct the Delhi Administration to reach, in Hindi, the essentials of this ruling to the ken of the jail people.

The stress that we lay is on the need of the Court to be dynamic and diversified in meeting out remedies to prisoners. Not merely the contempt power but also the power to create ad hoc, and use the services of, officers of justice must be brought into play. In this very case, Dr.

Chitale, as amicus curiae, was so authorised, with satisfactory results. American juristic thought has considered similar action: by courts using 595 Masters-Primarily factfinders for the court;

Receivers-Primarily hold, manage, or liquidate property;

“Special” Masters-responsible for multiple functions such as fashioning a plan and assisting in its implementation;

Monitors-responsible for observing the implementation process and reporting to the court; and Ombudsmen-responsible for hearing inmate complaints and grievances, conducting investigations and making recommendations to the court.

Courts which have utilised some of these special officers including; Hamilton v Schiro, 388 F. Supp.

1016 (E.D.La. 1970); and, Jackson v. Hendrick 321 A. 2d 603 (Pa. 1974) (Special Masters); Wayne County Bd. Of Comm’rs., Civ. Action 173271 (Cir. Ct. Of Wayne City., Nich., 1972) (Monitor); and, Morales v. Turman, 364 F.

Suppl. 166 E.D. Tex 1973) (ombudsmen).

The use of special judicial officers, like the use of the contempt power, holds considerable promise for assisting courts in enforcing judicial orders.

Hopefully, their use will be expanded and refined over time.

These measures are needed since the condition is escalating.

The situation in Tihar Jail is a reflection of crime explosion, judicial slow-motion and mechanical police action coupled with unscientific negativity and expensive futility of the Prison Administration. The Superintendent wails in court that the conditions are almost unmanageable:

(i) Huge overcrowding in the jail. Normal population of the jail remains between 2300- 2500 against 1273 sanctioned accommodation.

(ii) No accommodation for proper classification for undertrials, females, habituals, casuals, juveniles, political prisoners etc. etc.

(iii) Untrained staff of the Assistant Superintendents. Assistant Superintendents are posted from other various departments of Delhi Admn. viz. Sales Tax, Employment, Revenue, Civil Supplies etc., etc.

(iv) Untrained mostly the warders guard and their being non-transferable.

596 (v) A long distance from the courts of the jail and production of a large number of undertrial prisoners roughly between 250-300 daily and their receiving back into the jail in the evening.

(vi) The population of the jail having a large number of drugs addicts, habitual pickpockets having regular gangs outside to lookafter their interests legal and illegal both from outside.

Other jails may compete with Tihar to bear the palm in bad treatment and so the problem is pan-Indian. That is why we have been persuaded by the learned Solicitor General to adventure into this undiscovered territory. The Indian Bar, and may be, the Bar Council of India and the academic community, must aid the court and country in this operation Prison Justice. In a democracy, a wrong to some one is a wrong to every one and an unpunished criminal makes society vicariously guilty. This larger perspective validates our decisional range.

Before we crystalise the directions we issue one paramount thought must be expressed. The goal of imprisonment is not only punitive but restorative, to make an offender a non-offender. In Batra’s case this desideratum was stated and it is our constitutional law, now implicit in Art. 19 itself. Rehabilitation is a prized purpose of prison ‘hospitalization’. A criminal must be cured and cruelty is not curative even as poking a bleeding wound is not healing.

Social justice and social defence-the sanction behind prison deprivation-ask for enlightened habilitative procedures. A learned writer has said:

The only way that we will ever have prisons that operate with a substantial degree of justice and fairness is when all concerned with that prison-staff and prisoners alike-share in a meaningful way the decision-making process, share the making of rule and their enforcement. This should not mean three “snitches” appointed by the warden to be an “inmate advisory committee”. However, if we are to instill in people a respect for the democratic process, which is now the free world attempts to live, we are not achieving that by forcing people to live in the most etalitarian institution that we have in our society.

Thus, ways must be developed to involve prisoners in the process of making decision that affect every aspect of their life in the prison.

The Standard Minimum Rules, put out by United Nations agencies also accent on socialisation of prisoners and social defense:

57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.

58. The purpose of justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime.

This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self supporting life.

59. To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.

Prison-processed rehabilitation has been singularly unsuccessful in the West and the recidivism rate in our country also bears similar testimony: To get tough, to create more tension, to inflict, more cruel E; punishment, is to promote more stress, more criminality, more desperate beastliness and is self-defeating though soothing to sadists. Hallock, a professor at the University of Wisconsin says:

The stresses that lead to mental illness are often the same stresses that lead to crime. Mental illness always has a maladaptive quality, and criminality usually has a maladaptive quality.

The final panacea for prison injustice is, therefore, more dynamic, far more positive, strategies by going back to man, the inner man The ward-warden relationship needs holistic repair if prisons are, in Gandhian terms, to become hospitals, if penology, as modern criminologists claim, is to turn therapeutic. The hope of society from investment in the penitentiary actualises only when the inner man within each man, doing the penance of prison life, transforms his outer values and harmonises the environmental realities with the infinite potential of his imprisoned being. Meditative experiments, follow-up researches and welcome results in many countries lend optimism to 598 techniques of broadening awareness, deepening consciousness and quietening the psychic being.

It is of seminal importance to note that the Tamil Nadu Prison Reforms Commission (1978-79) headed by a retired Chief Justice of the High Court of Patna, working with a team of experts. has referred with approval to successful experiments in Transcendental Meditation in the Madurai Central Prison:

Success has been claimed for this programme. It is re ported that there is “reduction of anxiety and fear symptoms, greater flexibility in dealing with frustration, increased desire to care for others, and ability to interact in group situations viz. rational rather than purely aggressive means. Some in mates reported spontaneous reduction in clandestine use of alcohol and ganja; and even cigarette smoking was less.

Prison authorities informed us that they noticed personality changes in some of these prisoners, and that they now had the calm and pleasant exchanges with these inmates. Their behaviour towards others in the prison and relationship with prison authorities also changed considerably”. There is a proposal to extend this treatment to short term prisoners also. This treatment may also be tried in other prisons where facilities exist. A copy of the report of the Director of the Madurai Institute of Social Work is in Appendix XI.

The time for prison reform has come when Indian methodology on these lines is given a chance. We do no more than indicate the sign post to Freedom From Crime and Freedom Behind Bars as a burgeoning branch of therapeutic jurisprudence. All this gains meaning where we recognise that mainstreaming prisoners into community life as willing members of a law-abiding society is the target. Rule 61 of the Standard Minimum Rules stresses this factor:

61. The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners. There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social 599 agencies. Steps should be taken to safeguard, to the minimum extent compatible with the law and the sentence, the rights relating to civil interests, social security rights and other social benefits of prisoners.

It follows that social resources, helpful to humane treatment and mainstreaming, should be ploughed in, senior law students screened by the Dean of reputed Law Schools may usefully be deputed to interview prisoners, subject to security and discipline. The grievances so gathered can be fed back into the procedural mechanism viz. the District Magistrate or Sessions Judge. The Delhi Law School, we indicate, should be allowed to send selected students under the leadership of a teacher not only for their own clinical education but as prisoner-grievance-gathering agency. Other service organisation, with good credentials, should be encouraged, after due checking for security, to play a role in the same direction. The Prisons Act does provide for rule-making and issuance of instructions which can take care of this suggestion.

Omega The omega of our judgment must take the shape of clear directives to the State and prison staff by epitomising the lengthy discussion. To clinch the issue and to spell out the precise directions is the next step.

1. We hold that Prem Chand, the prisoner, has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party. Lack of vigilance is limited guilt. We do not fix the primary guilt because a criminal case is pending or in the offing. The State shall take action against the investigating police for the apparently collusive dilatoriness and deviousness we have earlier indicated.

Policing the police is becoming a new ombudsmanic task of the rule of law. G

2. We direct the Superintendent to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted. No irons shall be forced on the person of Prem Chand in vindictive spirit. In those rare cases of ‘dangerousness’ the rule of hearing and reasons set out by this Court in Batra’s case and elaborated earlier shall be complied with.

3. Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court will be given all facilities for inter views, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the visitatorial and supervisory judicial role. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court results which have relevance to legal grievances.

4. Within the next three months, Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deem-d fit and suitable action taken on complaints made. Access to such boxes shall be accorded to all prisoners.

5. District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall be made to the High Court for the latter to initiate, if found necessary, habeas action.

It is significant to note the Tamil Nadu Prison Reforms Commission’s observations:

38.16. Grievance Procedure :-This is a very important right of a prisoner which does not appear to have been properly considered. The rules regulating the appointment and duties of non-official visitors and official visitors to the prisons have been in force for a long time and their primary functions is “to visit all parts of the jail and to see all prisoners and to hear and enquire into any complaint that any prisoner hear make”. In practice, these rules have not been very effective in providing a forum for the prisoners to redress their grievances. There are a few non-official visitors who take up their duties conscientiously and listen to the grievances of the prisoners. But most of them take this appointment solely as Fl a post of honour and are somewhat reluctant to record hl the visitors’ book any grievance of a prisoner which might cause embarrassment to the prison staff. The judicial officers, viz., the Sessions Judge and the Magistrates who are also ex- officio visitors do not discharge their duties effectively.

We insist that the judicial officers referred to by us shall carry out their duties and responsibilities and serve as an effective grievance Mechanism.

6. No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action.

Conclusion What we have stated and directed constitute the mandatory part of the judgment and shall be complied with by the State. But implicit in the discussion and conclusions are certain directives for which we do not fix any specific time limit except to indicate the urgency of their implementation. We may spell out four such quasi-mandates.

1. The State shall take early steps to prepare in Hindi, a Prisoner’s Handbook and circulate copies to bring legal awareness home to the k inmates. Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may create a fellow- ship which Will ease tensions. A prisoners’ wall paper, which will freely ventilate grievances will also reduce stress. All these are implementary of s. 61 of the Prisons Act.

2. The Slate shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity community contact and correctional strategies. In this latter aspect, the observations we have made of holistic development of personality shall be kept in view.

3. The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the Model Manual being out of focus with healing goals. A correctional-cum orientation course is necessitous for the prison staff inculcating the constitutional values, therapeutic approaches and tension- free management.

4. The prisoners’ rights shall be protected by the court by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the Court such as for e.g. Free Legal Aid (Supreme Court) Society. The District Bar shall, we re-commend, keep a cell for prisoner relief In this connection, it is heartening to note that the Delhi University, Faculty of Law, has a scheme of free legal assistance even to prisoners.

The Declaration on the Protection of All Persons from Torture and other cruel, Inhuman or Degrading Treatment or Punishment adopted by U. N. General Assembly (Resolution 3452 of 9 December 1975) has relevance to our decision. In particular- Article 8.-Any person who alleges that he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to, and to have his case impartially examined by, the competent authorities of the State concerned.

Article 9.-Wherever there is reasonable ground to believe that an act of torture as defined in article I has been committed, the competent authorities of the State concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint.

Dr. Chitale has handed up to us an American Civil Liberties Union Hand-book on the Rights of Prisoners. It rightly sets the sights of prison justice thus :

As an institution, our penal and “correctional” system is an abject failure. The conditions in America’s jails and prisons virtually ensure psychological impairment and physical deterioration for thousands of men and women each year. Reformation and rehabilitation is the rhetoric; systematic dehumanization is the reality. Public attention is directed only sporadically toward the subhuman conditions that prevail in these institutions, and usually only because the prisoners themselves have risked many more years in confinement, and in some cases even their lives, to dramatize their situation by protest.

The ‘central evil’ of prison life, according to this handbook, is “the unreviewed administrative discretion granted to the poorly trained personnel who deal directly with prisoners. Moreover, even those rights which are now guaranteed by the courts are often illusory for many prisoners. Implementation and enforcement of these rights rest primarily in the hands of prison officials. Litigation is costly and time- consuming, and few lawyers have volunteered their service in this area. Thus even those minimal rights which appear on paper are often in reality denied. ” We conclude with the hope that the State, though preoccupied with many pressing problems, will discharge its constitutional obligation to the invisible mortals incarcerated by it and legislatively and administratively re-make a Prison Code adhering to the high values of the Preamble. Over a hundred years ago (1870)- ” …. some American prison administrators assembled to discuss their common problems and founded what is now the American Correctional Association. At the very first meeting, these remarkable men set down a justly famous ‘Statement of Twenty-two Principles.” Among the twenty-two were these:

“Reformation, not vindictive suffering, should be the purpose of the penal treatment of prisoners. The prisoner should be made to realize that his destiny is in his own hands:

Prison discipline should be such as to gain the will of the prisoner and conserve his self-respect:

The aim of the prison should be to make industrious free men rather than orderly and obedient prisoners.

This quote from the well-known work “The Crime of Punishment” extracted by George Ellis in his book “Inside Folsom Prison: Trans- cendental mediation and TM-Sidhi Program” is notable as a practicable project which will reduce the number of prisoners by raising the nature of prisoners.

In the package of benign changes needed in our prisons with a view to reduce tensions and raise the pace of rehabilitation, we have referred to acclimatization of the community life and elimination of sex vice vis a vis prisoner we have also referred to the unscientific mixing up in practice of under-trials, young offenders and long-term convicts. This point deserves serious attention. A recent book “Rape in Prison” states :

“One of the most horrendous aspects of a jail sentence is the fact that not only are the young housed with the older offenders, but those awaiting trial share the same quarters as convicted inmates. The latter individuals have little to lose in seeking sexual gratification through assault, for they have to serve their time any way .. As matters now stand, sex is unquestionable the most pertinent issue to the inmates’ life behind bars. . . There is a great need to utilize the furlough system in corrections. Men with record showing good behaviour should be released for week ends at home with their Families and relatives.

Farewell to this case is not final so far as the jailor and the police investigator are concerned. The former will stand his trial and shall receive justice. We say no more here. The investigator invites our displeasure and the Assistant Public Prosecutor, whom he consulted, makes us unhappy since we have had a perusal of the case diary. The crime alleged is simple, the material relied on is short and yet, despite repeated observations from the Bench the investigator has delayed dawdily the completion of the collection of evidence and the laying of the charge-sheet.

The prisoner who is the victim has been repeatedly questioned under different surroundings and divergent statements are recorded. We do not wish to state what we consider to be the obvious inference, but we are taken aback when the Assistant Public Prosecutor has given an opinion which, if we make presumption in his favour, shows indifferences and, if we make contrary inferences, makes us suspect. When offences are alleged to have taken place within the prison, there should be no tinge or trace of departmental collusion or league between the police and the prison staff. We make these minimal observations so that the State may be alerted for appropriate action. Surely, The conduct of the prosecution cannot be entrusted to one who has condemned it in advance. B We allow the petition and direct a writ to issue, including the six mandates and further order that a copy of it be sent for suitable action to the Ministry of Home Affairs and to all the State Governments since Prison Justice has pervasive relevance. C PATHAK, J.-I have read the judgment prepared by my learned brother. For my part, I think it sufficient to endorse the following finding and direction detailed towards the end of the judgment:

(1) The prisoner, Prem Chand, has been tortured while in custody in the Tihar Jail. As a criminal case is in the offing or may be pending, it is not necessary in this proceeding to decide who is the person responsible for inflicting the torture.

(2) The Superintendent of the Jail is directed to ensure that no punishment or personal violence is inflicted on Prem Chand by reason of the complaint made in regard to the torture visited on him.

Besides this, I am in general agreement with my learned brother on the pressing need for prison reform and the expeditious provision for adequate facilities enabling the prisoners, not only to be acquainted with their legal rights, but also to enable them to record their complaints and grievances, and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the Court having jurisdiction subject, of course, to considerations of prison discipline and security. It is imperative that District Magistrate,, and Sessions Judges should visit the prisons in their jurisdiction and afford effective opportunity to the prisoners for ventilating their grievances and, where the matter lies within their powers, to make expeditious enquiry therein and take suitable remedial action. It is also necessary that the Sessions Judge should be informed by the jail authorities of any punitive action taken against a prisoner within two days of such action. A statement by the Sessions Judge in regard to his visits, enquiries made and action taken thereon shall be submitted periodically to the High Court to acquaint it with the conditions prevailing in the prisons within the jurisdiction of the High Court.

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IN THE SUPREME COURT OF INDIA
HUSSAINARA KHATOON & ORS. …PETITIONER
Vs.
HOME SECRETARY, STATE OF BIHAR, PATNA …RESPONDENT
DATE OF JUDGMENT: 09/03/1979
BENCH: BHAGWATI, P.N. DESAI, D.A.
CITATION:
1979 AIR 1369 1979 SCR (3) 532
1980 SCC (1) 98
CITATOR INFO :
R 1981 SC 928 (4)
D 1982 SC 710 (92)
R 1983 SC 361 ((2)19)
RF 1983 SC 465 (5,17)
R 1983 SC 624 (10)
R 1986 SC 180 (39)
R 1986 SC 991 (5)
RF 1992 SC1701 (29)

ACT:

Administration of Justice-Speedy trial-Fundamental right of accused-Constitutional obligation of State.

Constitution of India 1950-Arts. 21 and 39A-Free legal services to poor essential element of ‘reasonable fiar and just’,procedure.

HELD: (1) The procedure under which a person may be deprived of his life or liberty should be ‘reasonable fair and just.’ Free legal services to the poor and the needy is an essential element of any ‘reasonable fair and just’procedure. A prisoner who is to seek his liberation through the court’s process should have legal services available to him. [537 C, D] Meneka Gandhi v. Union of India, [1978] 1 SCC 248; M.H.

Hoskot v. State of Maharashtra, [1978] INSC 138; [1978] 3 SCC 544; Gideon v.

Wainwright[1963] USSC 42; , 372 US 335; 9 L. ed. at 799; John Richard Argersinger v. Raymond Hamlin, [1972] USSC 128; 407 U.S. 25: 35 L. ed. 2d 530 at 535-36; referred to (2) Article 39A also emphasises that free legal service is an inalienable element of ‘reasonable, fair and just’procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal service is therefore, clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of, an offence and it must be held implicit in the guarantee of Art. 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services, on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. [539 F-540 A] (3) The poor in their contact with the legal system have always been on the wrong side of the law. They have always come across “law for the poor” rather than “law of the poor”. The law is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio economic order and improving their life conditions by conferring rights and benefits on them.

The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary to inject equal justice into legality and that can be done only by a dynamic and activist scheme of legal services. [541 E-F] 533

4. The urgent necessity of introducing a dpnamic and comprehensive legal services programme impressed upon the Government of India as also the State Governments. That is not only a mandate of equal justice implicit in Art. 14 and right to life and liberty conferred by Art. 21 but also the compulsion of the constitutional directive embodies in Art.

39A. [542 D]

5. The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State.

It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people as a sentinel on the qui-vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, appointment of additional judges and other measures calculated to ensure speedy trial. [543 D-E] (6) The courts in the United States have adopted a dynamic and constructive role in regard to prison reform by utilising the activist magnitude of the Eighth Amendment.

The courts have ordered substantial improvements to be made in a variety of archaic prisons and jails through its decisions. [543 F] Rhem v. Malclm, 377 F. Supp. 995, Jackson v. Bishop, 404 F. Supp. 2d. 571, Holl v. Sarver, [1971] USCA8 196; 309 F. Supp. 362;

Jones v. Wittenberg, 330 F. Supp. 707; Newman v. Alabama, 349 F. Supp. 278; Gates v. Collier, 349 F. Suppl. 881;

referred to.

(7) The powers of this Court in protection of the Constitutional rights are of the widest amplitude and this Court should adopt an activist approach and issue to the State, directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial. But in order to enable the court to discharge this constitutional obligation, it is necessary that the court should have the requisite information bearing on the problem. [543 H-544 A] Directed that:

(a) On the next remand dates when the under-trials are produced before the Magistrates or the Sessions Courts the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail and opposing remand provided that no objection is raised to such a lawyer on their behalf. [540 B] (b) The State Government and High Court to furnish particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving year-wise break up of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more than six months. [544 D]

ORIGINAL JURISDICTION: Writ Petition No. 57 of 1979.

K. Hingorani for the Petitioners.

U. P. Singh for the Respondent.

534 The Order of the Court was delivered by BHAGWATI, J.-This writ petition again comes up for hearing before us pursuant to the directions given by us on 26th February, 1979(1) and today three additional counter- affidavits have been filed on behalf of the respondents: one by Mrinmaya Choudhri, Assistant Inspector General of Prisons: the other by Bageshwari Prasad Pande, Superintendent of the Patna Central Jail and the third by Pradip Kumar Ganguly, Superintendent of the Muzafferpur Central Jail. Mrinmaya Choudhri has in his affidavit given particulars of the under-trial prisoners in 48 jails in the State of Bihar in addition to the particulars of the undertrial prisoners in 17 jails already submitted on 26th February, 1979. We directed the State of Bihar by our order dated 26th February, 1979 to file a revised chart showing a year-wise break-up of the under-trial prisoners after making a division into two broad categories viz. minor offences and major offences but this direction has not yet been carried out by the State of Bihar. Mrinmaya Choudhri has, however, assured us in his affidavit that several steps regarding the different directions given by the Court are being promptly implemented but due to shortage of time it has not been possible complete the same by 3rd March, 1979. We direct that the State of Bihar will file within three weeks from to-day a revised chart in regard to the under-trial prisoners in all the 65 jails in a manner which would clearly show year-wise as to what is the date from which each of them is in jail after making a broad division into two categories of minor offences and major offences. We are glad to note that so far as women under ‘protective custody’ are concerned, the State has assured us in the affidavit of Mrinmaya Choudhri that necessary steps for transferring women under “protective custody’ in jails to the institutions run by the welfare department have been taken and directions to that effect are issued by the Government.

We hope and trust that this direction given by us in our earlier order dated 26th February, 1979 will be carried out by Government and compliance report submitted to us within the prescribed time.

Though we directed the State of Bihar by our order dated 26th February, 1979 to intimate to the court by a proper affidavit to be filed on or before 3rd March, 1979 whether the under-trial prisoners whose particulars were given in the counter-affidavit filed on 26th February, 1979 were periodically produced before the Magistrates in compliance with the proviso to section 167(2), we find that the only averment made by Bageshwari Prasad Pande in his affidavit in response to this direction is that petitioners Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 17 confined in the Patna Central Jail prior to their release were 535 regularly produced before the courts “as and when required by the courts”. This averment does not at all constitute compliance with the direction given by us. We would like to know from the State of Bihar in a proper affidavit to be filed within two weeks from today whether the under-trial prisoners who were directed to be released by us on their personal bond were periodically produced before the Magistrates in compliance with requirement of the proviso to section 167(2). We would suggest that the State should furnish to this Court the dates on which these under-trial prisoners were remanded to judicial custody from time to time by the Magistrates, so that we can satisfy ourselves that the requirement of the proviso was complied with.

We also find an averment in the affidavit of Pradeep Kumar Ganguly that Petitioners Nos. 10, 11, 12, 13, 15, 16 and 18 who were previously confined in the Muzaffarpur Central Jail prior to their release were regularly produced before the Court “as and when required by the courts”. This averment, as we have pointed out, is wholly unsatisfactory and it does not inform the Court as to what were the dates on which these under-trial prisoners were remanded from time to time by the Magistrates. It is only if these particulas are furnished to us that we can satisfy ourselves in regard to compliance with the requirement of the proviso to section 167(2) and we would, therefore, direct the State of Bihar to furnish these particulars to us in an affidavit to be filed within two weeks from today.

We should also like to have the particulars in regard to the dates on which remand orders were made from time to time by the Magistrates in regard to under-trial prisoners at items Nos. 4, 5, 6, 7, 8, 13, 21, 22, 24, 28, 29, 30, 43, 56, 69, 71, 72, 79, 85, 92, 96, 97, 101, 129, 133, 136 to 142, 165 to 167, 170 to 174, 177, 191, 199, 210, and 236 in the list of under-trial prisoners in Ranchi Central Jail submitted on behalf of the respondents. These under-trial prisoners have been in jail for a period of over six to seven years and we would like to satisfy ourselves that the requirement of the proviso to section 167(2) was complied with in their case. The affidavit giving these particulars should be filed by the State Government within three weeks from today. There are quite a larg number of under-trial prisoners who are languishing in jail for long periods of time and it is not possible for us to examine the individual cases of these under trial prisoners for the purpose of satisfying ourselves in regard to compliance with the proviso to section 167(2), but we woudl request the High Court of Patna to pick out a few names from the lists of under-trial prisoners which have been filed before us by the State of Bihar on 26th February, 1979 and 5th March, 1979 and satisfy itself 536 whether these under-trial prisoners have been periodically remanded from time to time by the Magistrates as required by the proviso to section 167(2). We would direct the State of Bihar to furnish copies of these lists of under-trial prisoners to the Chief Justice of the Patna High Court within ten days from today.

We find from the lists of under-trial prisoners filed before us on behalf of the State of Bihar that the under- trial prisoners whose names are set out in the chart filed by Mrs. Hingorani to-day have been in jail for periods longer than the maximum term for which they could have been sentenced; if convicted. This discloses a shocking state of affairs and betrays complete lack of concern for human values. It exposes the callousness of our legal and judical system which can remain unmoved by such enormous misery and suffering resulting from totally unjustified deprivation of personal liberty. It is indeed difficult for us to understand how the State Government could possibly remain oblivious to the continued incarceration of these under- trial prisoners for years without even their trial having commenced. The judiciary in the State of Bihar also cannot escape its share of blame because it could not have been unware of the fact that thousands of under-trial prisoners are languishing in jail awaiting trial which never seems to commence. We fail to see how the continued detention of these under-trial prisoners mentioned in the list of Mrs.

Hingorani can be justified when we find that they have already been in jai for a period longer than what they would have been sentenced to suffer, if convicted. They have in fact some jail term to their credit. We, therefore, direct that these under-trial prisoners whose names and particulars are given in the list filed by Mrs. Hingorani should be released forthwith as continuance of their detention is clearly illegal and in violation of their fundametal right under Article 21 of the Constitution.

Then there are several under-trial prisoners who are charged with offences which are bailable but who are still in jail presumably because no application for bail has been made on their behalf or being too poor they are unable to furnish bail. It is not uncommon to find that under-trial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf. Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason of their poverty 537 the under-trial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pretrial detention. This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programme, but so far, these cries do not seem to have evoked any response. We do not think it is possible to reach the benefits of the legal process to the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation wide legal service programme to provide free legal services to them. It is now well settled, as a result of the decision of this Court in Maneka Gandhi v. Union of India(1) that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure unnder which a person may be deprived of his life or liberty should be ‘reasonable, fair and just’. Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as ‘reasonable fair and just. It is an essential indegredient of reasonable, fair and just procedure to a prisonel who is to seek his liberation through the court’s process that he should have legal services available to him.

This Court pointed out in M. H. Hoskot v. State of Maharashtra (2).:”Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supporteve skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law”. Free legal services to the poor and the needy is an essential element of any ‘reasonable, fair and just’ procedure. It is not necessary to quote authorative pronouncements by judges and jurists in support of the view that without the service of a lawyer an accused person would be denied ‘reasonable, fair and just’ procedure. Black, J., observed in Gidian v. Wainwright(3):

“Not only those precedents but also reason and reffection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious 538 truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are every where deemed essential to protect the public’s interest in an orderly society.

Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessties, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him.” The philosophy of free legal service as an essential element of fair procedure is also to be found in the following passage from the judgment of Douglas, J. in Jon Richard Argersinger v. Raymond Hamlin(1) “The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law, if charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one.

He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, 539 how much more true is it of the ignorant and illiterate or those of feeble intellect.

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours. From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Both Powell and Gideon involved felonies. But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty.

x x x x x x The court should consider the probable sentence that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed….. The court should consider the individual factors peculiar to each case. These, of course would be the most difficult to anticipate. One relevant factor would be the competency of the individual defendent to present his own case. (emphasis added)” We may also refer to Article 39A the fundamental constitutional directive which reads as follows:

“39A. Equal justice and free legal aid:-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (emphasis added)” This Article also emphasises that free legal service is an inalienable element of ‘reasonable, fair and just’ procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, clearly an essential ingredient of ‘reasonable, fair and just, procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.

This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the 540 needs of justice so required, provided of course the accused person does not object to the provision of such lawyer. We would, therefore, direct that on the next remand dates, when the under-trial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such under- trial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment dated 12th February, 1979. The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today.

There are also various under-trial prisoners who have been in jail for periods exceeding one-half of the maximum punishment that could be awarded to them, if convicted, for the offences with which they are charged. To take an example, Budhu Mahli, who is at item No. 1 in the list of undertrial prisoners in Ranchi Central Jail has been in jail since 21st November, 1972 for offences under Section 395 of the Indian Penal Code and Section 25 of the Indian Arms Act.

The maximum punishment for the offence under Section 395 of the Indian Penal Code is 10 years while that for the offence under Section 25 of the Indian Arms Act is much less. Yet Budhu Mahli has been in jail as an under-trial prisoner for over six years. So also Jairam Manjhi, Somra Manjhi, Jugal Munda and Gulam Munda at Item Nos. 2 to 7 in the list of under-trial prisoners confined in Ranchi Central Jail have been in jail as under-trial prisoners from 21st February, 1974 that is, for a period of over five years for the offence under Section 395 of the Indian Penal Code which is punishable with a maximum term of imprisonment of ten years.

There are numerous other instances which can easily be gleaned from the lists of under-trial prisoners filed on behalf of the State of Bihar, where the under-trial prisoners have been in jail for more than half the maximum term of imprisonment for which they could be sentenced, if convicted. There is no reason why these undetrial prisoners should be allowed to continue to languish in jail, merely because the State is not in a position to try them within a reasonable period of time. It is possible that some of them, on trial may be acquitted of the offences charged against them and in that event, they would have spent several years in jail for offences which they are ultimately found not to have committed. What faith would these people have in our system of administration of justice ? Would they not carry a sense of frustration and bitterness against a society which keeps them in jail for so many years for offences which they did not commit ? It is, therefore, absolutely essential that persons accused of offences 541 should be speedily tried, so that in cases where bail, in proper exercise of discretion, is refused, the accused persons have not to remain in jail longer than is absolutely necessary. Since there are several undertrial prisoners who have been in jail for periods longer than half the maximum term of imprisonment for which they could if convicted, be sentenced, we would direct that on the next remand dates when they are produced before the Magistrates or the Sessions Courts, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail and opposing remand provided that no objection is raised to such lawyer on their behalf and if any application for bail is made, the Magistrates or the Sessions Courts, as the case may be should dispose of the same in accordance with the broad guidelines indicated by us in our judgment dated 12th February, 1979. The State Government will comply with this direction as far as possible within a period of six weeks from today and submit report of compliance to the High Court of Patna.

We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man. Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. The poor in their contract with the legal system have always been on the wrong side of the law. They have always come across “law for the poor” rather than “law of the poor”. The law is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services. We may remind the Government of the famous words of Mr. Justice Brennan “Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down.

When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because 542 democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in an benefit by its impartiality and fairness.” And also recall what was said by Leeman Abbot years ago in relation to affluent America.

“If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the courtroom, the seeds of revolution will be sown, the fire-brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which will follow.” We would strongly recommend to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country. That is not only a mandate of equal justice implicit in Article 14 and right to life and liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39A.

We find from the counter affidavit filed on behalf of the respondents that no reasons have been given by the State Goverment as to why there has been such enormous delay in bringing the under-trial prisoners to trial. Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of ‘reasonable, fair and just’ procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on he ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem v.

Malclm(1): “The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty”. It is also interesting to notice what Justice, then Judge, Blackmum said in Jackson v. Bishop(2):

“Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considerations….” 543 So also in Holt v. Sarver(1), affirmed in 442 F. Supp.

362, the Court, dealing with the obligation of the State to maintain a Penitentiary System which did not violate the Eighth Amendment aptly and eloquently said “Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed upon what Respondents may actually be able to accomplish. If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States.” The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inabiltiy. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State.

It is also the constitutional obligation of this Court as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial. We find that in fact the courts in the United States have adopted this dynamic and consructive role so far as the prison reform is concerned by utilising the activist magnitude of the Eighth Amendment.

The courts have ordered substantial improvements to be made in a variety of archaic prisons and jails through decisions such as Hot v. Sarver (supra), Jones v. Wittenberg(2), Newman v. Alabama(3) and Gates v. Collier(4). The Court in the last mentioned case asserted that it “has the duty of fashioning a decree that will require defendants to eliminate the conditions and practices at Parchman here-in- above found to be violative of the United State’s constitution” and in discharge of this duty gave various directions for improvement of the conditions of those confined in the State Penitentiary. The powers of this Court in protection of the Constitutional rights are of the widest amplitude and we do not see why this 544 Court should not adopt a similar activist approach and issue to the State directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial. But in order to enable the Court to discharge this constitutional obligation, it is necessary that the Court should have the requisite information bearing on the problem. We, therefore, direct the State of Bihar to furnish to us within three weeks from today particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving yearwise breakup of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more than six months. We would appreciate if the High Court of Patna also furnishes the above particulars to us within three weeks from today since the High Court on its administrative side must be having records from which these particulars can be easily gathered. We also direct the State of Bihar to furnish to us within three weeks from today particulars as to the number of cases where first information report have been lodged and the cases are pending investigation by the police in each sub-division of the State as on 31st December, 1978 and where such cases have been pending investigation for more than six months, the State of Bihar will furnish broadly the reasons why there has been such delay in the investigative process. The writ petition will now come up for hearing and final disposal on 4th April, 1979. We have already issued notice to the Supreme Court Bar Association to appear and make its submissions on the issue arising in the writ petition since they are of great importance. We hope and trust that the Supreme Court Bar Association will respond to the notice and appear to assist the Court at the hearing of the writ petition.

N.V.K.

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RAMANA DAYARAM SHETTY …PETITIONER
Vs.
THE INTERNATIONAL AIRPORT AUTHORITY OF INDIA AND ORS. …RESPONDENT

DATE OF JUDGMENT 04/05/1979

BENCH : BHAGWATI, P.N.

BENCH : BHAGWATI, P.N. TULZAPURKAR, V.D. PATHAK, R.S.

CITATION :
1979 AIR 1628 1979 SCR (3)1014 1979 SCC (3) 489

CITATOR INFO :
R 1980 SC 840 (15,16,20) F 1980 SC1992 (10) F 1980 SC2147 (63) R 1981 SC 212 (18,31,32,34,36,37,38,39,41,42 E&R 1981 SC 487 (8,9,16) R 1981 SC1694 (5) R 1981 SC2001 (6,7) MV 1982 SC1325 (12) R 1983 SC 130 (16) R 1983 SC 624 (8) F 1983 SC 848 (11) R 1983 SC1235 (8) R 1984 SC 363 (22) D 1984 SC 415 (6) F 1984 SC 541 (13) R 1984 SC 657 (16) R 1984 SC1420 (5) F 1985 SC1147 (12) RF 1986 SC 180 (41) RF 1986 SC 872 (71) RF 1986 SC1035 (12) RF 1986 SC1370 (10) RF 1986 SC1527 (12,19,23) R 1986 SC1571 (52,54,69,105) E&R 1987 SC 251 (23) E 1987 SC1080 (12,TO,17,26,28,29,30) R 1987 SC1109 (30,35,36) RF 1988 SC 157 (8,9,10) RF 1988 SC 268 (30) R 1988 SC 469 (7,8,10,TO,12) APL 1989 SC 88 (7) D 1989 SC1031 (12) D 1989 SC1076 (11,19,20) F 1989 SC1629 (13,14) F 1989 SC1642 (25,27) D 1989 SC2138 (64,100) RF 1990 SC1277 (46) RF 1990 SC1480 (29) R 1991 SC 101 (237,257,263) RF 1991 SC 537 (29) RF 1991 SC1153 (12) RF 1991 SC1173 (5) D 1991 SC1579 (6) RF 1992 SC 1 (133) RF 1992 SC 76 (2) F 1992 SC1858 (19)

ACT:

International Airport Athority Act 1971-Whether an instrumentality of State-Authority called for tenders for a job-If could accept a tender not conforming to conditions in notice.

Administrative law-Statutory body-When an instrumentality of State.

HELD: The action of the first respondent in accepting the tender of the fourth respondents, who did not satisfy the standard or norm, was clearly discriminatory since it excluded other persons similarly situate from tendering for the contract and it was arbitrary and without reason.

Acceptance of the tender was invalid as being violative of the equality clause of the Constitution as also of administrative law inhibiting arbitrary action. [1056C] (a) What paragraph ( 1 ) of the notice required was that only a person running a registered second class hotel or restaurant and having at least 5 years’ experience as such should be eligible to submit the tender. The test of 1) eligibility laid down in this paragraph was an objective test and not a subjective one. If a person submitting the tender did not have atleast five years’ experience of running a second class hotel, he was eligible to submit the tender and it would not avail him to say that though he did not satisfy this condition he was otherwise capable of running a second class restaurant and therefore should be considered. This was in fact how the first respondent understood this condition of eligibility. The first respondent did not regard this requirement as meaningless or unnecessary and wanted to be satisfied that the fourth respondents had fulfilled this requirement. The fourth respondents were neither running a second grade hotel or restaurant nor did they have five years’ experience of running such a hotel or restaurant. Therefore the fourth respondents did not satisfy the condition of eligibility laid down in paragraph(l) of the noice. [1028 B-H] (b) It is not possible to justify the action of the first respondent on the ground that it could have achieved the same result by rejecting all the tenders and entering into direct negotiations with the fourth respondents Although there was no statutory or administrative rule requiring the first respondent to give a contract only by inviting tenders and that on the terms of paragraph 8 of the tender notice, it was not bound to accept any tender, the first respondent did not reject the tenders outright and enter into direct negotiation with the fourth respondents for awarding the contract. The process of . awarding a contract by inviting tenders was not terminated or abandoned by the first respondent by rejecting all the tenders but in furtherance of the process the tender of the fourth respondents was accepted by the first respondent. Nor was the contract given to the fourth respondents as a result of direct negotiations. [1029 D-G] 2(a) Today with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large scale assumption of industrial and commercial activities by the State, the power of 1016 the executive Government to affect the lives of the people is steadily growing. The attainment of socio-economic justice being a conscious end of State policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with State power-holders. This renders it necessary to structure and restrict the power of the executive Government so as to prevent its arbitrary application or exercise.

Whatever be the concept of the rule of law, there is substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found. It is unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege. [1031 F-H] (b) To.day the Government, in a welfare State? is the regulator and dispenser of special services and provider of a large number of benefits. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds: leases, licences, contracts and so forth. With the inereasing magnitude and range of governmental functions as we move closer to a wefare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, it cannot be said that they do not enjoy any legal protection nor can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure. [1032 E-H] (c) The law has not been slow to recognize the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognized as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will.

[1033 C-D] Viterolli v. Saton [1959] USSC 90; 359 U.S. 535: 3 Law Ed. (Second Series) 1012, Erusian Equipment and Chemicals Ltd. v. State of West Bengal, [1974] INSC 237; [1975] 2 SCR. 674 referred to.

(d) Therefore, where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess. the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts etc., must be con fined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck 1017 down. unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was non-irrational, unreasonable or discriminatory. [1034 F-H] (e) The Government which represents the executive authority of the State may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of JURIDICAL persons to carry out its functions. With the advent of the welfare state the civil service, which traditionally carried out functions of Government through natural persons, was found inadequate to handle the new tasks of specialised and highly technical character. To fill the gap it became necessary to forge a new instrumentality or administrative device for handling these new problems and that is done by public corporations which has become the third arm of the Government. They are regarded as agencies of the Government. In pursuance of the industrial policy resolution of the Government of India corporations were created by the Government for setting up and management of public enterprises and carrying out public function. The corporations so created, acting as instrumentality or agency of Government, would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself though in the eye of law they would be distinct and independent legal entities. It Government. acting,, through its officers is subject to certain constitutional and public law. limitations, it must follow a fortiori that Government, though the instrumentality or agency of corporations, should equally be subject to the same limitations. But the question is how to determine whether a corporation is acting is instrumentality or agency of Government. [1035A-C, F-H] 3(a ) The factors for determining whether a corporation has become an instrumentality or agency of the Government are: does the State give (my financial assistance and if so that is the magnitude of such assistance ? Is there any control of the management and policies of the corporation by the State, and what is the nature and extent of such control? Does the corporation enjoy any State conferred or State protected monopoly status and whether the functions carried out by the corporation are pubic functions closely related to governmental functions? It is not possible to particularise all the relevant factors but no single factor will yield a safisfactory answer, to the question and the court will have to consider the cumulative. effect of these various factors and establish it by its decision on the basis of a particularised enquiry into facts and circumstances of each case. [1041 B-E] (b) Sukhudev v. Bhagatram [1975] INSC 43; [1975] 3 S.C.R. 619 at 658 explained, Kerr v. Eneck Pratt Free Library, 149 F. 2d 212, Jackson v. Metropolitan Edison Co. [1974] USSC 219; 419 U.S. 345, 42 L.ed. 2d 477, Evans v. Newton [1966] USSC 2; 382 U.S. 296; 15 L.ed. 2d 373, Pfizer v. Ministry of Health [1964] 1 Ch. 614, New York v. United State [1946] USSC 13; 326 U.S. 572, Cf. Helvering v. Gerhardt [2008] USSC 14; 304 U.S. 405 426, 427 referred to.

(c) Where a corporation is an instrumentality or agency of Government it would be subject to some constitutional or public law limitations ns Government. The rule inhibiting arbitrary action by Government must apply equally where such corporation is dealing with the public and it cannot act arbitrarily and c into relationship with any person it likes at its sweet will. Its action must be in conformity with some principles which meets the test of reason and relevance. [1041 H] 9-409 SC1/79 1018 Rajasthan Electricity Board v. Mohan Lal [1967] INSC 84; [1967] 3 S.C.R. 377, and Sukhdev v. Bhagatram [19751 3 S.C.R. 619 at 658 followed.

Praga Tools Corporation v. C.A. Imanuel (1969] 3 S.C.R.

773, Heavy Engineering Mazdoor Union v. State of Bihar [1969] 3 S.C.R. 995, S. L. Aggarwal v. General Manager, Hindustan Steel Limited [1969] INSC 343; [1970] 3 SCR 363, Sarbhajit Tewari v Union of lndia & Ors. [1975] INSC 44; [1975] 1 SCC 485; held inapplicable.

(d) It is well established that Art. 14 requires That action must not be arbitrary and must be based on some rational and relevant principle which is non-discriminatory.

It must not be guided by extraneous or irrelevant considerations. The State cannot act arbitrarily in enter into relationship, contractual or otherwise, with a third party. Its action must conform to some standard or norm which is rational and non-discriminatory. [1042 C] E. P. Rayappa v. State of Tamil Nadu [1973] INSC 214; [1974] 2 SCR 348, Maneka Gandhi v. Union of India [1978] 2 S.C.R. 621, Rashbihari Panda v. State of Orissa [1969] INSC 10; [1969] 3 S.C.R. 374, C.

K. Achuthan v. State of Kerala [1959] S.C.R. 78, referred to, Trilochan Mishra v. State of orissa & ors. [1971 3 S.C.R. 153, State of Orissa v. Harinarayan Jaiswal & ors.

[1972] 2 S.C.R. 36, Rajasthan Electricity Board v. Mohan Lal [1967] INSC 84; [1967] 3 S.C.R. 377, Praga Tools Corporation Dv. c. A.

Imanuel [1969] INSC 50; [1969] 3 S.C.R. 773, Heavy Engineering Mazdoor Union v. State of Bihar [1969] 3 SCR, 995, S. L. Aggarwal v.

General Manager Hindustan Steel Limited [1969] INSC 343; [1970] 3 SCR. 363, Sarbhajit Tewari v. Union of India & ors. [1975] INSC 44; [1975] 1 SCC 485, held in applicable.

4(a) The International Airport Authority Act, 1971 empowers the Central Government to constitute an authority called the International Air port Authority. The salient features of the Act are: the Anthority, which is a body cor porate having perpetual succession and a common seal, consists of a Chairman and certain other Members who are appointed by the Central Government. The Central Government has power to terminate the appointment or to remove a member from the Board of the Authority. Although the Authority has no share capital of its own, capital needed by it for carrying out its functions is provided wholly by the Central Government. All non-recurring, expenditure Incurred by the Central Government for or in connection with the purposes of the airports upto the appointed date and declared to be capital expenditure by the Central Government shall be treated as capital provided by the Central Government to the first respondent and all sums of money due to the Central Government in relation to the airports immediately before the appointed date shall] be deemed to be due to the first respondent. The functions, which until the appointed date were being carried out by the General Government, were Transferred to the Airport Athority by virtue of s. 16. The first respondent, according to s. 20, should pay the balance of its annual net profits to the Central Government after making provision for reserve funds, bad and doubtful debts, depreciation in assets and so on. The first respondent, under s. 21, has to submit for the approval of the Central Government a statement of the programme of its activities during the forthcoming financial year. Its accounts are audited by the Comptroller and Auditor General and the accounts Shall be forwarded to the Central Government. The first respondent is required to submit an account of its activities during a financial year and this report is laid before the Houses of Parliament by the Central Government.

The Central Government has power to divest the first respodent temporarily from 1019 the management of any airport and direct ut to entrust such management to any other person. Power is conferred under s.

34 on the Central Government to supersede the first respodent under certain specified circumtances. Section 35 gives power to the Central Government to give directions in writing to the Airport Authority on questions of policy and the Airport Authority is bound by such directions. Section 37 empowers the Airport Authority to make regulations.

Section 39 provides that contravention of any regulation made by the Airport Authority is punishable. [1052B-1054C] (b) A conspectus of the provisions of the Act clearly shows that every test l down by this Court in deciding whether a statuority authority comes within the purview of Art. 12 of the constitution is satisfied in the case of the first respondent. they leave no room for doubt that it is an instrumentality or agency of the Central Government and falls within the definition of State. Therefore, having regard both to the constitutional mandate of Art. 14 and the judicially evolved rule of administrative law, the first respendent was not entitled to act arbitrarily in accepting the tender of the fourth respondents but was bound to conform to the standard or norm did down in paragraph I of tho notice inviting tenders. The standard or norm laid down by the notice was reasonable and non-discriminatory and once it is found that such a standard or norm is laid down, the first respondent was not entitled to depart from it and award the contract to the fourth respondents who did not satisfy the condition of eligibility prescribed by standard or norm. If none of the tenderer satisfied the condition the first respondent could have rejected the tender and invited fresh tenders on the basis of less stringent standard or norm, but it could not depart from the prescribed standard or norm. [1055 E-A] (c) In the instant case the appellant had no real interest in the result of the litigation. There can be no doubt that the litigation was commenced by the appellant not with a view to protection his own interest, but had been put up by others for depriving the fourth respondents of the benefit of the contract secured by them. The Writ Petition was filed more than five months after the acceptance of the tender and the position would have been different had tho appellant filed it immediately after the acceptance of the tender. The Fourth respondents have incurred a large expenditure in making necessary arrangement under the bona fide belief that their tender had been legally and validly accepted. It would be most inequitous to set aside the contract at the instance of the appellant

CIVIL APPELLATE JURISIDICTION: Civil Appeal No. 895 of 1978.

Appeal by Special Leave from the Judgment and order dated 23-1-1978 of the High Court at Bombay in Appeal No.

234/77 arising out of Misc. Petition No. 1582/77.

Ashok H. Desai, Y. S. Chitale, Jai Chinai, P. G.

Gokhale and . R Agarwal for the Appellant. II G. B. Pai, o. c. Mathur and D. N. Mishra for Respondent No. 1.

1020 F.S. Nariman, R. H. Dhebar, S. K. Dholakia, H H. Yagnik and . V. Desai for Respondent No. 4.

The Judgment of the Court was delivered by BHAGWATI, J.-This appeal by special leave raises interesting questions of law in the area of public law. What are the constitutional obligations on the State when it takes action in exercise of its statutory or executive power? Is the State entitled to deal with its property in and manner it likes or award a contract to any person it chooses without any constitutional limitations upon it? What are the parameters of its statutory or executive power in the matter of awarding a contract or dealing with its propery ? The questions fell in the sphere of both administrative law and constitutional law and they assume special significance in a modern welfare State which is com mitted to egalitarian values and dedicated to the rule or law. But these questions cannot be decided in the abstract.

They can be determined only against the back-ground of facts and hence we shall proceed to State the facts giving rise to the appeal.

On or about 3rd January, 1977 a notice inviting tenders for putting up and running a second class restaurant and two Snack bars at the International Airport Bombay was issued by the 1st respondent Which is a corporate body constituted under the International Airport Authority Act, 43 of 1971.

The notice stated in the clearest terms in paragraph (1) that “Sealed tenders in the prescribed form are here by invited from Registered IInd Class Hoteliers having at least 5 years’ experience for putting up and running a IInd Class Restaurant and two Snack bars at this Airport for a period of 3 years”. The latest point of time upto which the tenders could be submitted to the 1st respodent was stipulated in Paragraph 7 of the notice to be 12 p.m. On 25th January, 1977 and it was provided that the tenders would be opened on the same date at 12.30 hours. Paragraph (8) of the notice made it clear that “the acceptance of the tender will rest with the Airport Director who does not bind himself to accept any tender and reserves to himself the right to reject all or ally of the tenders received without assigning any reasons therefore ” There were six tenders received by the 1st respondent in response to the notice and one of them was from the 4th respondents of offering a licence fee of Rs. 6666.66 per month, and the others were from Cafe Mahim, Central Catering Service, one A. S. Irani, Cafe Seaside and Care Excelsior offering progressively decreasing licence fee very much lower than that offered by the 4th respondents.

The tenders were opened in the 1021 office of the Airport Director at 12.30 p.m. On 25th January, 1977 and at that time the 4th respondents were represented by their sole proprietor Kumaria. A. S. Irani was present on behalf of himself, Cafe Mahim, Cafe Seaside and Cafe Excelsior and there was one representative of Central Catering Service. The tenders of Cafe Mahim, Central Catering Service, Cafe Seaside and Cafe Excelsior were not complete since they were not accompanied by the respective income tax certificates, affidavits of immovable property and solvency certificates, as required by cl. (9) of the terms and conditions of the tender form. The tenders of A.

S. Irani was also not complete as it was not accompanied by an affidavit of immovable property held by him and solvency certificates. The only tender which was complete and fully complied with the terms and conditions of the tender form was that of the 4th respondents and the offer contained in that tender was also the highest amongst all the tenders.

Now it is necessary to point out at this stage that while submitting their tender the 4th respondents had pointed out in their letter dated 24th January, 1977 addressed to the Airport Director that they had 10 years’ experience in catering to reputed commercial houses, training centres, banks and factories and that they were also doing considerable outdoor catering work for various institutions.

This letter showed that the 4th respondents had experience only of running canteens and not restaurants and it appeared that they did not satisfy the description of “registered IInd Class Hotelier having at least 5 years’ experience” as set out in paragraph (1) of the notice inviting tenders. The Airport officer, therefore, by his letter dated 15th February, 1977 requested the 4th respondents to inform by return of post whether they were a “registered IInd Class Hotelier having at least 5 years experience” and to produce documentary evidence in this respect within 7 days. The 4th respondents pointed out to the Airport officer by their letter dated 22nd February, 1977 that they had, in addition to what was set out in their earlier letter dated 24th January, 1977, experience of running canteens for Phillips India Ltd. and Indian oil Corporation and moreover, they held Eating House Licence granted by the Bombay Municipal Corporation since 1973 and had thus experience of 10 years in the catering line. It appears that before this letter of the 4th respondents could reach Airport officer, another letter dated 22nd February, 1977 was addressed by the Airport officer once again requesting the 4th respondents to produce documentary evidence to show if they were ”a registered Ilnd Class Hotelier having at least 5 years experience”. The 4th respondents thereupon addressed another letter dated 26th February, 1977 to the Director pointing out that they had considerable experience of catering for various reputed commercial houses, 1022 clubs, messes and banks and They also held an Eating House Catering Establishment (Canteen) Licence as also a licence issued under the Prevention of Food Adulteration Act. The 4th respondents stated that their sole proprietor Kumaria had started his career in catering line in the year 1962 at Hotel Janpath, Delhi and gradually risen to his present position and that he had accordingly “experience equivalent to that of a IInd Class or even 1st Class hotelier.” This position was reiterated by the 4th respondents in a further letter dated 3rd March, 1977 addressed to the Director. This information given by the 4th respondents appeared to satisfy the 1st respondent and by a letter dated 19th April, 1977 the 1st respondent accepted the tender of the 4th respondents on the terms and conditions set out in that letter. The 4th respondents accepted these terms and conditions by their letter dated 23rd April, 1977 and deposited with the 1st respondent by was of security a sum of Rs. 39,999.96 in the form of fixed Deposit Receipts in favour of the Ist respondent and paid to the 1st respondent a sum of Rs. 6666.66 representing licence fee for one month and other amounts representing water, electricity and conservancy charges. The 4th respondents thereafter executed and handed over to the Ist respondent an agreement in the form attached to the tender on 1st May, 1977. The 4th respondents also got prepared furniture, counters and showcases as also uniforms for the staff, purchased inter alia deep freezers, water coolers, electrical appliances, icecream cabinets, espresso coffee machines, crockery, cutlery and other articles and things and also engaged the necessary staff for the purpose of running the restaurant and the two Snack bars But the Ist respondent could not hand over possession of the requisite sites to the 4th respondents, since A. S. Irani was running his restaurant and snack bars on these sites under a previous contract with the 1 st respondent and though that contract had come to an end, A. S. Irani did not deliver possession of these sites to the Ist respondent. The 4th respondents repeatedly requested the 1st respondent and the Airport Director who is the 2nd respondent in the appeal, to hand over possession of the sites and pointed out to the that the 4th repondents were incurring losses by reason of delay in delivery of possession, but on account of the intransigence of A. S.

Irani the Ist respondent could not arrange to hand over possession of the sites to the 4th respondents.

Meanwhile one K. S, Irani who owned Cafe Excelsior filed Suit No. 6544 of 1977 in the City Civil Court, Bombay against the respondents challenging the decision of the Ist respondent to accept the tender of the 4th respondents and took out a notice of motion for restraining the 1 st respondent from taking any further steps pursuant to 1023 the acceptance of the tender. K. S. Irani obtained an ad- interim injunction against the respondents but after hearing the respondents, the City Civil Court vacated the ad-interim injunction and dismissed the notice of motion by an order dated 10th october, 1977. An appeal was preferred by K. S.

Irani against this order, but the appeal was dismissed by the High Court on 19th october, 1977. Immediately thereafter, on the same day, the Ist respondent handed over possession of two, sites to the 4th respondents and the 4th respondents proceeded to set up snack bars on the two sites and started business of catering at the two snack bars.

These two sites handed over to the 4th respondents were different from the sites occupied by A.S. Irani, because A.

S. Irani refused to vacate the sites in his occupation. So far as the site for the restaurant was concerned, the Ist respondent could not hand over the possession of it to the 4th respondents presumably because there was no other appropriate site available other than the one occupied by A.

S. Irani. Since A. S. lrani refused to hand over possession of the sites occupied by him to the Ist respondent, even though his contract had come to an end, and continued to carry on the business of running the restaurant and the snack bars on these sites, the Ist respondent was constrained to file suit No. 8032 of 1977 against A. S.

Irani in the City Civil Court at Bombay and in that suit, an injunction was obtained by the 1st respondent restraining A.

S. Irani from running or conducting the restaurant and the snack bars or from entering the premises save and except for winding up the restaurant and the snack bars. A. S. Irani preferred an appeal against the order granting the injunction, but the appeal was rejected and ultimately a petition for special leave to appeal to this Court was also turned down on 31st July, 1978.

This was, however, not to be the end of the travails of the 4th respondents. for, as soon as the appeal preferred by K. S. Irani against the order dismissing his notice of motion was rejected by the High Court on 19th October, 1977, A. S. Irani filed another suit being suit No. 8161 of 1977 in the City Civil Court, Bombay on 24th October,1977 seeking mandatory injunction for removal of the two snack bars put up by the 4th respondents. This was one more attempt by A.

S. Irani to prevent the 4th respondents from obtaining the benefit of the contract awarded to them by the Ist respondent. He, however, did not succeed in obtaining ad- interim injunction and we are told that the notice of nation taken out by him is still pending in the City Civil Court.

It will thus be seen that A. S. Irani failed in his attempts to prevent the 4th respondents from obtaining the contract and enjoying its 1024 benefit. The 4th respondents put up two snack bars on the sites provided by the 1st respondent and started running the two snack bars from 1 9th october? 1977. The restaurant however, could not be put up on account of the inability of the Ist respondent to provide appropriate site to the 4th respondents and, therefore, the licence fee for the two snack bars had to be settled and it was fixed at Rs. 4.50O/- per month by mutual agreement between the parties. But it seems that the 4th respondents were not destined to be left in peace to run the two snack bars and soon after the dismissal of the appeal of A. S. Irani on l9th october, 1977 and the failure of A. S. Irani to obtain an ad interim mandatory injunction in the suit filed by him against the 1st and the 4th respondents, the appellant filed writ petition No. 1582 of 1977 in the High Court of Bombay challenging the decision of the 1st respondent to accept the tender of the 4th respondents. The writ petition was moved before a Single Judge of the High Court on 8th November, 1977 after giving prior notice to the respondent and after hearing the parties, the learned Single Judge summarily rejected the writ petition. The appellant preferred an appeal to the Division Bench of the High Court against the order rejecting the writ petition and on notice being issued by the Division Bench, the 1st and the 4th respondents filed their respective affidavits in reply showing cause against the admission of the appeal. The Division Bench after considering the affidavits and hearing the parties rejected the appeal in limine on 21st February, 1978. The appellant thereupon filed a petition for special leave to appeal to this Court and since it was felt that the questions raised in the appeal were of seminal importance, this Court granted special leave and decided to hear the appeal at an early date after giving a further opportunity to the parties to file their respective affidavits. That is how the appeal has now come before us for final hearing with full and adequate material placed before us on behalf of both the parties.

The main contention urged on behalf of the appellant was that in paragraph (1) of the notice inviting tenders the 1st respondent had stipulated a condition of eligibility by providing that a person submitting a tender must be a “registered IInd class Hotelier having at least 5 years experience.” This was a condition of eligibility to be satisfied by every person submitting a tender and if in case of any person, this condition was not satisfied, his tender was ineligible for being considered. The 1st respondent, being a State within the meaning of Art. 12 of the Constitution or in any event a public authority, was bound to give effect to the condition of eligibility set up by it and was not entitled to depart from it at its own sweet will 1025 without rational justification. The 4th respondents had experience of catering only in canteens and did not have 5 years’ experience of running a IInd class hotel or restaurant and hence they did not satisfy the condition of eligibility and yet the 1st respondent accepted the tender submitted by them. This was clearly in violation of the standard or norm of eligibility set up by the 1 respondent and the action of the 1st respondent in accepting the tender of the 4th respondents was clearly invalid. Such a departure from the standard or norm of eligibility had the effect of denying equal opportunity to the appellant and others of submitting their tenders and being considered for entering into contract for putting up and running the restaurant and two snack bars. The appellant too was not a registered 2nd class hotelier with 5 years’ experience and was in the same position as the 4th respondents vis-a-vis this condition of eligibility and he also could have submitted his tender and entered the field of consideration for award of the contract, but he did not do so because of this condition of eligibility which he admittedly did not satisfy. The action of the 1st respondent in accepting the tender of the 4th respondents had, therefore the effect of denying him equality of opportunity in the matter of consideration for award of the contract and hence it was unconstitutional as being in violation of the equality clause. This contention of the appellant was sought to be met by a threefold argument on behalf of the 1 st and the 4th Respondents. The first head of the argument was that grading is given by the E Bombay City Municipal Corporation only to hotels or restaurants and not persons running them and hence there can be a 2nd grade hotel or restaurant but not a 2nd grade hotelier and the requirement in paragraph (1) of the notice that a tenderer must be a registered 2nd grade hotelier was therefore a meaningless requirement and it could not be regarded as laying clown any condition of eligibility. It was also urged that in any event what paragraph (] ) of the notice required was not that a person tendering must have 5 years’ experience of running a 2nd grade hotel, but he should have sufficient experience to be able to run a 2nd grade hotel and the 4th respondents were fully qualified in this respect since they had over 10 years’ experience in catering to canteens of well known companies, clubs and banks. It was further contended in the alternative that paragraph (8) of the notice clearly provided that the acceptance of the tender- would rest with the Airport Director who did not bind himself to accept any tender and reserved to himself the right to reject all or any of the tenders without assigning any reasons therefor and it was, therefore, competent to the 1st respondent to reject all the tenders and to nogotiate with any person it considered fit to enter 1026 into a contract and this is in effect and substance what the 1st respondent did when he accepted the tender of the 4th respondents. The second head of argument was that paragraph (1) of the notice setting out the condition of eligibility had no statutory force nor was it issued under any administrative rules and, therefore, even if there was any departure from the standard or norm of eligibility set out in that paragraph, it was not justiciable and did not furnish any cause of action to the appellant. It was competent to the 1st respondent to give the contract to any one it thought fit and it was not bound by the standard or norm of eligibility set out in paragraph (l) of the notice.

It was submitted that in any event the appellant had no right to complain that the 1st respondent had given the contract to the 4th respondents in breach of the condition of eligibility laid down in paragraph (1) of the notice. And lastly, under the third head of argument, it was submitted on behalf. Of the 1st and the 4th respondents that in any view of the matter, the writ petition of the appellant was liable to be rejected in the exercise of its discretion by the Court, since the appellant had no real interest but was merely a nominee of A. S. Irani who had been putting up one person after another to start litigation with a view to preventing the award of the contract to the 4th respondents.

The appellant was also guilty of laches and delay in filing the writ petition and the High Court was justified in rejecting the writ petition in limine particularly in view of the fact that during the period between the date of acceptance of the tender and the date of filing of the writ petition, the 4th respondents had spent an aggregate sum of about Rs. 1,25,000/- in making arrangements for putting up the restaurant and two snack bars. These were the rival contentions urged on behalf of the parties and we shall now proceed to discuss them in the order in which we have set them out.

Now it is clear from paragraph (1) of the notice that tenders were invited only from “registered 2nd Class hoteliers having at least 5 years’ experience”. It is only if a person was a registered 2nd Class hotelier having at least 5 years’ experience that he could, on the terms of paragraph (1) of the notice, submit a tender. Paragraph (1) of the notice prescribed a condition of eligibility which had to be satisfied by every person submitting a tender and if, in a given case, a person submitting a tender did not satisfy this condition, his tender was not eligible to be considered. Now it is true that the terms and conditions of the tender form did not prescribe that the tenderer must be a registered IInd Class hotelier having at least 5 years’ experience nor was any such stipulation to be found in the form c f the agreement 1027 annexed to the tender but the notice inviting tenders published in the newspapers clearly stipulated that tenders may be submitted only by registered llnd Class hoteliers having at least 5 years’ experience and this tender notice was also included amongst the documents handed over to prospective tenderers when they applied for tender forms.

Now the question is, what is the meaning of the expression “registered Ilnd Class hotelier”, what category of persons fall within the meaning of this description ? This is a necessary enquiry in order to determine whether the 4th respondents were eligible to submit a tender. It is clear from the affidavits and indeed there was no dispute about it that different grades are given by the Bombay City Municipal Corporation to hotels and restaurants and, therefore, there may be a registered Ilnd Class Hotel but no such grades are given to persons running hotels and restaurants and hence it would be inappropriate to speak of a person as a registered llnd Class hoteIier. But on that account would it be right to reject the expression “registered IInd Class hotelier” as meaningless and deprive paragraph (1) of the notice of any meaning and effect. We do not think such a view would be justified by any canon of construction. It is a well settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the court should not be prompt to ascribe superfluity to the language of a document “and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use”. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce silence any part of the document and make it altogether inapplicaple. Now, here the expression used in paragraph (1) of the notice was “registered IInd Class hotelier” and there can be no doubt that by using, this expression the Ist respondent intended to delineate a certain category of persons who alone should be eligible to submit a tender. The Ist respondent was not acting aimlessly or insensibly in insisting upon this requirement nor was it indulging, in a meaningless and futile exercise. It had a definite purpose in view when it laid down this condition of eligibility in paragraph (1) of the notice. It is true that the phraseology used by the Ist respondent to express its intention was rather inapt but it is obvious from the context that the expression “registered llnd Class hotelier” was loosely used to denote a person conducting or running a IInd Class hotel or restaurant. It may be ungrammatical but it docs not offend common-sense to describe a 1028 person running a registered IInd grade hotel as a registered IInd grade hotelier. This meaning is quite reasonable and does not do any violence to the language and makes sense of the provision contained in paragraph (1) of the notice. We must, in the circumstances, hold that, on a proper construction, what paragraph (1) of the notice required was that only a person running a registered llnd Class hotel or restaurant and having at least 5 years’ experience as such should be eligible to submit a tender. This was a condition of eligibility and it is difficult to see how this condition could be said to be satisfied by any person who did not have five years’ experience of running a IInd Class hotel or restaurant. The test of eligibility laid down was an objective test and not a subjective one. What the condition of eligibility required has that the person submitting a tender must have 5 years’ experience of running a II Class hotel, as this would ensure by an objective test that he was capable of running a Il Class restaurant and it should not be left to the Ist respondent to decide in its subjective discretion that the person tendering was capable of running such a restaurant. If therefore, a person submitting a tender did not have at least 5 years’ experience of running a II Class hotel, he was not eligible to submit the tender and it would not avail him to say that though he did not satisfy this condition, he was otherwise capable of running a IInd Class restaurant and should, therefore, be considered. This was in fact how the 1 st respondent itself understood this condition of eligibility. When the 4th respondents submitted their tender along with Their Letter dated 24th January, 1977, it appeared from the documents submitted by the 4th respondents that they did not have 5 years’ experience of running a II Class restaurant. The 1st respondent by its letter dated l5th February 1977 required the 4th respondents to produce documentary evidence to show that they were “registered II Class hotelier having at least 5 years’ experience.” The 1st respondent did not regard this requirement of eligibility as meaningless or unnecessary and wanted to be satisfied that the 4th respondent did fulfil this requirement. Now, unfortunately for the 4th respondents, the had over lO years’ experience of running can teens but at the date when they submitted their tender, they cannot running a II grade hotel or restaurant nor did they have 5 years’ experience of running such a hotel or restaurant. Even if the experience of the 4th respondents in the catering line were taken into account from 1962 onwards, it would not cover a total period of more than 4 years 2 months so far as catering experience in llnd Grade hotels and restaurants is concerned. The 4th respondents thus did not satisfy the condition of eligibility laid down in paragraph (1) of the notice and in fact this was implidely conceded by 1029 the 4th respondents in their letter dated 26th February, 1977 where A they stated that they had “experience equivalent to that of a 2nd class or even 1st class hotelier.” The 4th respondents were, accordingly, not eligible for submitting a tender and the action of the 1st respondent in accepting their tender was in contravention of paragraph (1) of the notice.

It was suggested on behalf of the 1st and the 4th respondents that there was nothing wrong in the 1st respondent giving the contract to the 4th respondents since it was competent to the 1st respondent to reject all the tenders received by it and to negotiate directly with The 4th respondents for giving them the contract and it made no difference that instead of following this procedure, which perhaps might have resulted in the 4th respondents offering a smaller licence fee and the 1 st respondent suffering a loss in the process, true 1 st respondent accepted The tender of the 4th respondents. We do not think there is any force in this argument. It is true that there was no statutory or administrative rule requiring the 1st respondent to give a contract only by inviting tenders and hence the 1st respondent was entitled to reject all the tenders and, subject to the constitutional norm laid down in Art 14, negotiate directly for entering into a contract.

Paragraph (8) of the notice also made it clear that the 1st respondent was not bound to accept any tender and could reject all the tenders received by it. But here the 1st respondent did not reject the tenders outright and enter into direct negotiations with the 4th respondents for awarding the contract. The process of awarding a contract by inviting tenders was not terminated or abandoned by the 1st respondent by rejecting all the tenders but in furtherance of the process, the tender of the 4th respondents was accepted by the 1st respondent. The contract was not given to the 4th respondents as a result of direct negotiations.

Tenders were invited and out of the tenders received, the one submitted by the 4th respondents was accepted and the contract was given to them. It is, therefore not possible to justify the action of the 1st respondent on the ground that the 1st respondent could have achieved the same result by rejecting all the tenders and entering into direct negotiations with the 4th respondents.

That takes us to the next question whether the acceptance of the tender of the 4th respondents was invalid and liable to be set aside at the instance of the appellant.

It was contended on behalf GI the 1st and the 4th respondents that the appellant had no locus to maintain the writ petition since no tender was submitted by him and he was a mere stranger. The argument was that if the appellant 1030 did not enter the field of competition by submitting a tender, what did it matter to him whose tender was accepted;

what grievance could he have if the tender of the 4th respondents was wrongly accepted. A person whose tender was rejected might very well complain that the tender of someone else was wrongly accepted, but it was submitted, how could a person who never tendered and who was at no time in the field, put forward such a complaint ? This argument, in our opinion, is mis-conceived and cannot be sustained for a moment. The grievance of the appellant, it may be noted, was not that his tender was rejected as a result of improper acceptance of the tender of the 4th respondents, but that he was differentially treated and denied equality of opportunity with the 4th respondents in submitting a tender.

His complaint was that if it were known that non-fulfilment of the condition of eligibility would be no bar to consideration of a tender, he also would have submitted a tender and competed for obtaining a contract. But he was precluded from submitting a tender and entering the field of consideration by reason of the condition of eligibility, while so far as the 4th respondents were concerned, their tender was entertained and accepted even though they did not satisfy the condition of eligibility and this resulted in inequality of treatment which was constitutionally impermissible. This was the grievance made by the appellant in the writ petition and there can be no doubt that if this grievance were well founded, the appellant would be entitled to maintain the writ petition. The question is whether this grievance was justified in law and the acceptance of the tender of the 4th respondents was vitiated by any legal infirmity.

Now, there can be no doubt that what paragraph (1) of the notice prescribed was a condition of eligibility which was required to be satisfied by every person submitting a tender. The condition of eligibility was that the person submitting a tender must be conducting or running a registered 2nd class hotel or restaurant and he must have at least 5 years’ experience as such and if he did not satisfy this condition of eligibility his tender would not be eligible for consideration. This was the standard or norm of eligibility laid down by the 1 st respondent and since the 4th respondents did not satisfy this standard or norm, it was not competent to the 1st respondent to entertain the tender of the 4th respondents. It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those Standards on pain of invalidation of an act in violation of them. This rule was enunciat- 1031 ed by Mr Justice Frankfurter in Viteralli v. Seton(l) where the learned Judge said:

“An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a define(l procedure, even though generous beyond the requirement 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 the sword.

This Court accepted the rule as valid and applicable in India in A. S. Ahuwalia v. Punjab(2) and in subsequent decision given in Sukhdev v. Bhagatram,(3) Mathew, J., quoted the above-referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supportable also as emanation from Article 14, does not rest merely on that article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pages 540-41 in Prof. Wade’s Administrative Law 4th edition. There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. To- day with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large scale assumption of industrial and commercial activities by the State, the power of the executive Government to affect the lives of the people is steadily growing. The attainment of socio-economic justice being a conscious end of State policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with State power-holders. This renders it necessary to structure and restrict the power of the executive Government so as to prevent its arbitrary application or (1) [1959] USSC 90; 359 U. S. 535: 3 Law.Ed. (Second series) 1012 (2) [1974] INSC 280; [1975] 3. S. C. R. 82.

(3) [1975] INSC 43; [1975] 3. S. C. R. 619.

1032 exercise. Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his “The Law of the Constitution” or the definition given by Hayek in his “Road to Serfdom’ and ‘Constitution of liberty” or the exposition set-forth by Harry Jones in his “The Rule of Law and the Welfare State”, there is, as pointed out by Mathew, J., in his article on “The Welfare State, Rule of Law and Natural Justice” in “democracy Equality and Freedom,” “substantial agreement is in justice thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found”. It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affection of some right or denial of some privilege.

To-day the Government, is a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth.

These valuables which derive from relationship to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of pubic Land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing 1033 magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges But on that account, can it be said that they do not enjoy any legal protection ? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure ? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confinding/structuring and checking Government discretion in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an especially stimulating article on “The New Property” in 73 Yale Law Journal 733, “that Government action be based on standards that are not arbitrary or unauthorised.” “The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religions faith.

The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual We agree with the observations of Mathew, J., in V.

Punnan Thomas v. State of Kerala(1) that: “The Government is not and should not be as free as an individual in selecting the recepients for its largess. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal”. The same point was made by this court in Erusian Equipment and Chemicals Ltd. v. State of West Bengal(2) where the question was whether black-listing of a person without (1) AIR 1969 Kerala 81.

(2) [1974] INSC 237; [1975] 2 S.C.R. 674.

10-409 SCI/79 1034 giving him an opportunity to be heard was bad ? Ray, C. J., speaking on behalf of himself and his colleagues on the Bench pointed out that black-listing on a person not only affects his reputation which is in Poundian terms an interest both of personality and substance, but also denies him equality in the matter of entering into contract with the Government and it cannot, therefore, be supported without fair hearing. It was argued for the Government that no person has a right to enter into contractual relationship with the Government and the Government, like any other private individual, has the absolute right to enter into contract with any one it pleases. But the Court, speaking through the learned Chief Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. The learned Chief Justice said that when the Government is trading with the public, “the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions.

The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure.” This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.

Now, it is obvious that the Government which represents the executive authority of the State, may act through the instrumentality 1035 Or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the Government multiplied the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character.

The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to force a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm of the Government. As early as 1819 the Supreme Court of the United States in Mac Cullough v. Maryland(1) held that the Congress has power to charter corporations as incidental to or in aid of governmental functions and, as pointed out by Mathew, J., in Sukhdev v. Bhagat Ram (supra) such federal corporations would ex-hypothesi be agencies of the Government. In Great Britain too, the policy of public administration through separate corporations was gradually evolved and the conduct of basic industries through giant corporations has now become a permanent feature of public life. So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the Government of India Resolution on Industrial Policy dated 6th April, 1948 where it was stated inter alia that “management of State enterprises will as a rule be through the medium of public corporation under tile statutory control of the Central Government who will assume such powers as may be necessary to ensure this.” It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial Policy.

that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions. Ordinarily these functions could have been carried out by Government departmentally through its service personnel, but the instrumentality or agency of the corporations was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though (1) 4 Wheat 315 1036 in the eye of the law, they would be distinct and independent legal entities. If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or agency of corporations should equally be subject to the same limitations. But the question is how to determine whether a corporation is acting as instrumentality or agency of Government. It is a question not entirely free from difficulty.

A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act 1956 or the Societies Registration Act 1860. Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matter. So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated.

When does such a corporation become an instrumentality or agency of Government ? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so, what should be the nature of such control ? Should the functions which the corporation is charged to carry out possess any particular characteristic or feature, or is the nature or the functions immaterial ? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government, though this consideration also may not be determinative, because even while the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are the tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government ? It is not possible to formulate an all- 1037 inclusive or exhaustive test which would adequately answer this question ‘there is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.

The analogy of the concept of State action as developed in the United States may not, however, be altogether out of place while considering this question. The decisions of the court in the United States seem to suggest that a private agency, if supported by extraordinary assistance given by the State, may be subject to the same constitutional limitations as the State. Of course, it may be pointed out that “the State’s general common law and statutory structure under which its people carry on their private affairs, own property and contract, each enjoying equality in terms of legal capacity, is not such State assistance as would transform private conduct into State action”. But if extensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is if public character, it may be a relevant circumstance supporting an extensive that the corporation is an instrumentality or agency of Government. The leading case on the subject in the United States is Kerr v. Eneck Pratt Free Library(1). The Library system in question in this case 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 there paid by the city payroll officer and a high degree of budget control was exercised or available to the city government.

On these facts the Court of Appeal required the trustees managing the system to abandon a discriminatory admission policy for its library training courses. It will be seen that in this case there was considerable amount of State control of the library system in addition to extensive financial assistance and it is difficult to say whether, in the absence of such control it would have been possible to say that the action of the trustees constituted State action. Thomas P. Lewis has expressed the opinion in his article on “The meaning of State Action” (60 Colombia Law Review 1083) that in this case “it is extremely unlikely that absence of public control would have changed the result as long as 99% of the budget of a nominally private institution was provided by government. Such extensive governmental support should be sufficient identification with the Government to subject the institution to the provisions of the Fourteenth Amendment”.

(1) 149 F. 2d. 212.

1038 It may, therefore, be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregegnated with governmental character. But where financial assistance is not so extensive, it may not by itself, without anything more render the corporation an instrumentality or agency of government, for there are many private institutions which are in receipt of financial assistance from the State and merely on that account, they cannot be classified as State agencies. Equally a mere finding of some control by the State would not be determinative of the question “since a State has considerable measure of control under its police power over all types of business operations”. But ‘a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characteristic an operation as State action” vide Sukhdev v. Bhagatram(1). So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected. There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation’s ties to the State.

Vide the observations of Douglas, J., in Jackson v.

Metropolitan Edison Co.(2) There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being per formed. Vide Arthur S. Miller: “The Constitutional Law of the Security State” (10 Stanford Law Review 620 at 664).

It was pointed out by Douglas, J., in Evans v. Newton(3) that “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State”. Of course, with the growth of the welfare State, it is very difficult to define what functions are governmental and what are not, because, as pointed out by Villmer, L.J., in Pfizer v.Ministry of Health,(4) there has been, since mid-Victorian times, “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”.

(I) [1975] INSC 43; [1975] 3 S. C. R. 619 at 658.

(2) [1974] USSC 219; 419 U. S. 345: 42 L. ed. 2nd 477 (3) [1966] USSC 2; 382 U S. 296: 15 L. ed 2nd 373.

(4) [1964] I Ch. 614.

1039 Douglas, J., also observed to the same effect in New York v.

United States(1): ” 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.

Helverillg v. Gerhardt(2). 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 might have been viewed in an earlier day as an improvident or even dangerous extension of state activities may today be deemed indispensable. It may be noted that besides the so called traditional functions, the modern State operates a multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.

This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram (supra) where the learned Judge said that “institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the functions performed government agencies.

Activities which are too fundamental to the society are by definition too important not to be considered government functions.” This was one of the principal tests applied by the United States Supreme Court in Marsh v. Alabama(3) for holding that a corporation which owned a Company town was subject to the same constitutional limitations as the State.

This case involved the prosecution of Marsh, a member of the Johevah’s witnesses sect, under a state trespass statute for refusing to leave the side walk of the company town where she was distributing her religious pamphlets. She was fined $ 5/- and aggrieved by her conviction she carried the matter right upto the Supreme Court contending successfully that by reason of the action of the corporation her religious liberty had been denied. The Supreme Court held that administration of private property such as a town, though privately carried on, was, nevertheless, in the nature of a public function and that the private rights of the corporation must, therefore, be exercised within constitutional limitations and the conviction for trespass was reversed. The dominant theme of the majority opinion written by Mr. Justice Black was that the property of the corporation used as a town not recognisably different from other towns, lost its identification as purely private property. It was said that a town may (l) [1946] USSC 13; 326 U.S. 572.

(2) [2008] USSC 14; 304 U.S. 405, 426, 427.

(3) [1946] USSC 7; 326 U.S. 501: 19 L. ed. 265.

1040 be privately owned and managed but that does not necessarily aIlow the corporation to treat it as if it was wholly in the private sector and the exercise of constitutionally protected rights on the public ,street of a company town could not be denied by the owner. “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.

. . Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation”. Mr. Justice Frankfurter, concurring, reduced the case to simpler terms. He found in the realm of civil liberties the need to treat a town, private or not, as a town. The function exercised by the corporation was in the nature of municipal function and it was, therefore, subject to the constitutional limitations placed upon State action.

We find that the same test of public or governmental character of the function was applied by the Supreme Court of the United States in Evans v. Newton (supra) and Smith v.

Allwight.(1) But the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer’s social statics has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. (Mathew, J. Sukhdev v. Bhagatram (supra) at p. 652). But the public nature of the function, if impregnated with governmental character or “tied or entwined with Government” or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference.

(1) [1944] USSC 108; 321 U. S. 649.

1041 It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government.

We have referred to some of these factors and they may be summarised as under: whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adapt ability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency.

Moreover even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case. “the dispositive question in any stale action case,” as pointed out by Douglas, J., in Jackson v. Metropolitan Edison Company (supra) “is not whether any single fact or relationship presents a sufficient degree of state involvement, but rather whether the aggregate of all relevant factors compels a finding of state responsibility.” It is not enough to examine seriatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding of that effect. It is the aggregate or cumulative affect of all the relevant factors that is controlling. G Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily 1042 and enter into relationship with any person it likes at its sweetwill, but its action must be in conformity with some principle which meets the test of reason and relevance.

This rule also flows directly from the doctrine of equality embodied in Art. 14. It is now well settled as a result of the decisions of this Court hl E. P. Rayappa v.

State cf Tamil Nadu(l) and Maneka Gandhi v. Union of India(2) that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non- discriminatory: it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is protected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory. This principle was recognised and applied by a Bench of this Court presided over by Ray, C.J., in Erusian Equipment and Chemicals v. State of West Bengal (supra) where the learned Chief Justice pointed out that “the State can carry on executive function by making a law or without making a law. The exercise of such powers and functions in trade by the State is subject to Part III of the Constitution. Article 14 speaks of equality before the law and equal protection of the laws. Equality of opportunity should apply to matters of public contracts. The State has the right to trade. The State has there the duty to observe equality. An ordinary individual can choose not to deal with any person The Government cannot choose to exclude persons by discrimination. The order of black- listing has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting…. A citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling….It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the (1) [1973] INSC 214; [1974] 2 S. C. R. 348.

(2) 1978] 2 S. C. R. 621.

1043 goods.” It must, therefore follow as a necessary corollary from the principle of equality enshrined in Article 14 that though the State is entitled to refuse to enter into relationship with any one, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test of reasonableness and non-discrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and non-discriminatory ground.

It is interesting to find that this rule was recognised and applied by a Constitution Bench of this Court in a case of sale of kendu leaves by the Government of Orissa in Rashbihari Panda v. State of Orissa.(1) The trade of kendu leaves in the State of Orissa was regulated by the Orissa Kendu Leaves (Control of Trade) Act, 1961 and this Act created a monopoly in favour of the State so far as purchase of kendu leaves from growers and pluckers was concerned.

Section 10 of the Act authorised the Government to sell or otherwise dispose of kendu leaves purchased in such manner as the Government might direct. The Government first evolved a scheme under which it offered to renew the Licences of those traders who in its view had worked satisfactorily in the previous year and had regularly paid the amount due from them. The scheme was challenged and realising that it might be struck down, the Government withdrew the scheme and instead, decided to invite tenders for advance purchase of kendu leaves but restricted the invitation to those individuals who had carried out contracts in the previous year without default and to the satisfaction of the Government. This method of sale of kendu leaves was also challenged by filing a writ petition on the ground inter alia that it was violative of Articles ]4 and 19(1)(g) and this challenge, though negatived by the High Court, was upheld by this Court in appeal. The Court pointed out that the original scheme of offering to enter into contracts with the old licences and to renew their terms was open to grave objection, since it sought arbitrarily to exclude many persons interested in the trade and the new scheme under which the Government restricted the invitation to make offers to those traders who had carried out their contracts in the previous year without default and to the satisfaction of the Government was also objectionable, since the right to make tenders for the purchase of kendu leaves being restricted to a limited (1) [1969] INSC 10; [1969] 3 S.C.R. 374.

1044 class of persons, it effectively shut out all other persons carrying on trade in kendu leaves and also the new entrants into that business and hence it was ex-facie discriminatory and imposed unreasonable restrictions upon the right of persons other than the existing contractors to carry on business. Both the schemes evolved by the Government were thus held to be violative of Articles 14 and 19(1)(g) because they “gave rise to a monopoly in the trade in kendu leaves to certain traders and singled out other traders for discriminatory treatment”. The argument that existing contractors who had carried out their obligations in the previous year regularly and to the satisfaction of the Government formed a valid basis of classification bearing a just and reasonable relation to the object sought to be achieved by the sales namely, effective execution of the monopoly in the public interest, was also negatived and it was pointed out that: “exclusion of all persons interested in the trade, who were not in the previous year licencees, is ex facie arbitrary; it had not direct relation to the object of preventing exploitation of pluckers and growers of kendu leaves, nor had it any just or reasonable relation to the securing of the full benefit from the trade, to the State”.

The Court referred to the offer made by a well known manufacturer of bidis for purchase of the entire crop of kendu leaves for a sum of Rs. 3 crores which was turned down by the Government and expressed its surprise that no explanation was attempted to be given on behalf of the State as to why such an offer, from which the State stood to gain more than Rs. 1 crore, was rejected by the Government. It will be seen from this judgment that restricting the invitation to submit tenders to a limited class of persons was held to be violative of the equality clause, because the classification did not bear any. just and reasonable relation to the object sought to be achieved, namely, selling of kendu leaves in the interest of general public.

The standard or norm laid down by the Government for entering into contracts of sale of tendu leaves with third parties was discriminatory and could not stand the scrutiny of Article 14 and hence the scheme was held to be invalid.

The Court rejected the contention of the Government that by reason of section 10 it was entitled to dispose of kendu leaves in such manner as it thought fit and there was no limitation upon its power to enter into contracts for sale of kendu leaves with such persons it liked. The Court held that the Government was, in the exercise of its power to enter into contracts for sale of kendu leaves; subject to the constitutional limitation of Article 14 and it could not act arbitrarily in selecting persons with whom to enter into contracts and discriminate against others similarly situate.

The Court criticised 1045 the Government for not giving any explanation as to why an offer for a large amount was not accepted, the clearest implication being that the Government must act in the public interest; it cannot act arbitrarily and without reason and if it does so, its action would be liable to be invalidated.

This decision wholly supports the view we are taking in regard to The applicability of the rule against arbitrariness in State action. B We may also in this connection refer to the decision of this Court in C. K. Achuthan v. State of Kerala(1), where Hidayatullah, J., speaking on behalf of The Court made certain observation which was strongly relied upon on behalf of the respondents. The facts of this case were that the petitioner and the 3rd respondent Co-operative Milk Supply Union, Cannanore, submitted tenders for the supply of milk to the Government hospital at Cannanore for the year 1948-

49. The Superintendent who scrutinised the tenders accepted that of the petitioner and communicated the reasons for the decision to the Director of Public Health. The resulting contract in favour of the petitioner was, however, subsequently cancelled by issuing a notice in terms of clause (2) of the tender, in pursuance of the policy of the Government that in the matter of supply to Government Medical Institutions the Co-operative Milk Supply Union should be given contract on the basis of prices filed by the Revenue Department. The petitioner challenged The decision of the Government in a petition under Article 32 of the Constitution on the ground inter alia that there had been discrimination against him vis-a-vis the 3rd respondent and as such, there was contravention of Article 14 of the Constitution. The Constitution Bench rejected this contention of the petitioner and while doing so, Hidayatullah, J., made the following observation: “There is no discrimination, because it is perfectly open to the Government, even as it is to a private party, to choose a person to their liking, to fulfil contracts which they wish to be performed. When one person is choosen rather than another, the aggrieved party cannot claim the protection of Article 14, because the choice of the person to fulfil a particular contract must be left to the Government.” The respondents relied very strongly on this observation in support of their contention that it is open to the ‘State’ to enter into contract with any one it likes and choosing one person in preference to another for entering into a contract does not involve violation of Article 1a. Though the language in which this observation is couched is rather wide, we do not think that in making this observation, the Court. intended to lay down any absolute proposition permitting the state to act arbitrarily in the matter of entering into contract with (1) [1959] Supp. 1 S C. R. 787.

1046 third parties. We have no doubt that the Court could not have intended to lay down such a proposition because Hidayatullah J. who delivered the judgment of the Court in this case was also a party to the judgment in Rashbihari Panda v. State of Orissa (supra) which was also a decision of the Constitution Bench, where it was held in so many terms that the State cannot act arbitrarily in selecting persons with whom to enter into contracts. Obviously what the Court meant to say was that merely because one person is chosen in preference to another, it does not follow that there is a violation of Article 14, because the Government must necessarily be entitled to make a choice. But that does not mean that the choice be arbitrary or fanciful. The choice must be dictated by public interest and Must not be unreasoned or unprincipled.

The respondents also relied on the decision of this Court in Trilochan Mishra v. State of Orissa & ors.(1) The complaint of the petitioner in that case was that the bids of persons making the highest tenders were not accepted and persons who had made lesser bids were asked to raise their bids to the highest offered and their re vised bids were accepted. The Constitution Bench negatived this complaint and speaking through Mitter, J., observed:

“With regard to the grievance that in some cases the bids of persons making the highest tenders were not accept ed, The facts are that persons who had made lower bids were asked to raise their bids to the highest offered before the same were accepted. Thus there was no loss to Government and merely because the Government preferred one tender to another no complaint can be entertained. Government certainly has a right to enter into a contract with a person well known to it and specially one who has faithfully performed his contracts in the past in preference to an undesirable or unsuitable or untried person. Moreover, Government is not bound to accept the highest tender but may accept a lower one in case it thinks that the person offering the lower tender is on an overall consideration to be preferred to the higher tenderer.” We fail to see how this observation can help the contention of the respondents. It does not say that the Government can enter into contract with any one it likes arbitrarily and without reason. On the contrary, it postulates that the Government may reject a higher tender and accept a lower one only when there is valid reason lo do so, as for example, where it is satisfied that the person offering the Lower 1) [1971] 3 S. C. C. 153.

1047 tender is on an overall consideration preferable to the higher tenderer. There must be some relevant reason for preferring one tenderer to another, and if there is, the Government can certainly enter into contract with the former even though his tender may be lower but it cannot do so arbitrarily or for extraneous reason.

There was also one other decision of this Court in State of Orissa v. Harinarayan Jaiswal & ors.(1) which was strongly relied upon on behalf of the respondents. There the respondents were the highest bidders at an auction held by the orissa Government through the Excise Commissioner for the exclusive privilege of selling by retail country liquor in some shops. The auction was held pursuant to an order dated 6th January, 1971 issued by the Government of orissa in exercise of the power conferred under section 29(2) of the Bihar & orissa Excise Act, 1915 and clause (6) of this order provided that “no sale shall be deemed to be final unless confirmed by the State Government who shall be at liberty to accept or reject any bid without assigning any reason therefor”. The Government of orissa did not accept any of the bids made at the auction and subsequently sold the privilege by negotiations with some other parties. One of the contentions raised on behalf of the petitioners in that case was that the power retained by the Government “to accept or reject many bid without any reason therefor” was an arbitrary power violative of Articles 14 and 19(1) (g).

This contention was negatived and Hegde, J. speaking on behalf of the Court observed:

“The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. Hence quite naturally, the legislature has empowered the Government to see that there is no leakage in its revenue. It is for the Government to decide whether the price offered in on auction sale is adequate. While accepting or rejecting a bid, it is merely performing an executive function.

The correctness of its conclusion is not open to judicial review. We fail to see how the plea of contravention of Article 19(1)(g) or Article 14 can arise in these cases. The Governments power to sell the exclusive privilege set out in section 22 was not denied. It was also not disputed that these privileges could be sold by public auction. Public auctions are held to get the best possible price. Once these aspects are recognised, there appears to be no basis for contending that the owner of the privileges (1) [1972] INSC 78; [1972] 2 S.C.C. 36.

1048 in question who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate.” It will be seen from these observations that the validity of clause (6) of the order dated 6th January, 1971 was upheld by this Court on the ground that having regard to the object of holding the auction, namely, to raise revenue, the Government was entitled to reject even the highest bid, if it thought that the price offered was inadequate. The Government was not bound to accept the tender of the person who offered the highest amount and if the Government rejected all the bids made at the auction, it did not involve any violation of Article 14 or 19(1)(g). This is a self-evident proposition and we do not see how it can be of any assistance to the respondents.

The last decision to which reference was made on behalf of the respondents was the decision in P. R. Quenin v. M. K.

Tendel(1) This decision merely reiterates the principle laid down in the earlier decisions in Trilochan Mishra v. State of Orissa (supra) and State of Orissa v. Harinarayan Jaiswal (supra) and points out that a condition that the Government shall be at liberty to accept or reject any bid without assigning any reason therefor is not violative of Article 14 and that “in matters relating to contracts with the Government, the latter is not bound to accept the tender of the person who offers the highest amount”. Now where does it say that such a condition permits the Government to act arbitrarily in accepting a tender or that under the guise or pretext of such a condition, the Government may enter into a contract with any person it likes, arbitrarily and without reason. In fact the Court pointed out at the end of the judgment that the act of the Government was not “shown to be vitiated by such arbitrariness as should call for interference by the Court”, recognising clearly that if the rejection of the tender of the 1st respondent were arbitrary, the Court would have been justified in striking it down as invalid.

Now this rule, flowing as it does from Article 14, applies to every State action and since “State” is defined in Article 12 to include not only the Government of India and the Government of each of the States, but also “all local or other authorities within the territory of India or under the control of the Government of India”, it must apply to action of “other authorities” and they must be held subject to the same constitutional limitation as the Government. But the question arises what are the “other authorities” contemplated by Article 12 which fall within the definition of ‘State’ ? on this ques- (1) [1974] INSC 4; [1974] 3 S. C. R. 64.

1049 tion considerable light is thrown by the decision of this Court in Rajasthan Electricity Board v. Mohan Lal(1). That was a case in which this Court was called upon to consider whether the Rajasthan Electricity Board was an ‘authority’ within the meaning of the expression “other authorities” in Art. 12. Bhargava, J., delivering the judgment of the majority pointed out that the expression “other authorities” in Art. 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’. Shah, J., who delivered a separate judgment, agreeing with the conclusion reached by the majority, preferred to give a slightly different meaning to the expression “other authorities”. He said that authorities, constitutional or statutory, would fall within the expression “other authorities” only if they are invested with the sovereign power of the State, namely, the power to make rules and regulations which have the force of law. The ratio of this decision may thus be stated to be that a constitutional or statutory authority would be within the meaning of the expression “other authorities”, if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequence or it has the sovereign power to make rules and regulations having the force of law. This test was followed by Ray, C.J., in Sukhdev v. Bhagat Ram (supra). Mathew, J., however, in the same case, propounded a broader test, namely, whether the statutory corporation or other body or authority, claimed to fall within the definition of State’, is as instrumentality or agency of Government: if it is, it would fall within the meaning of the expression ‘other authorities’ and would be State’.

Whilst accepting the test laid down in Rajasthan Electricity Board v. Mohan Lal (supra), and followed by Ray, C. J., in Sukhdev v. Bhagat Ram (supra), we would, for reasons already discussed, prefer to adopt the test of Governmental instrumentality or agency as one more test and perhaps a more satisfactory one for determining whether a statutory corporation, body or other authority falls within the definition of ‘State’. If a statutory corporation, body or other authority is an instrumentality or agency of Government, it would be an ‘authority’ and therefore ‘State’ within the meaning of that expression in Article 12.

It is necessary at this stage to refer to a few decisions of this Court which seem to bear on this point and which require a little (1) [1967] INSC 84; [1967] 3 S C, R 377 11-904 SCI/79 1050 explanation. The first is the decision in Praga Tools Corporation v. C. A. Imanuel.(1) This was a case in which some of the workmen sought a writ of mandamus against Praga Tools Corporation which was a company with 56 per cent of its share capital held by the Centra1 Government, 32 per cent by the Andhra Pradesh Government and 12 per cent by private individuals. The Court held that a writ of mandamus did not lie, because Praga Tools Corporation “being a non statutory body and one incorporated under the Companies Act, there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty.” (emphasis supplied). It is difficult to see how this decision can be of any help in deciding the present issue before us. This was not a case where Praga Tools Corporation claimed to be an instrumentality of government or an ‘authority’ within the meaning of Article 12. The only question was whether a writ of mandamus could lie and it was held that since there was no duty imposed on Praga Tool Corporation by statute, no writ of mandamus could issue against it.

The second decision to which we must refer is that in Heavy Engineering Mazdoor Union v. State of Bihar(2). The question which arose in this case was whether a reference of an industrial dispute between the Heavy Engineering Corporation Limited (hereinafter referred to as the ‘Corporation’) and the Union made by the State of Bihar under section 10 of the Industrial Disputes Act, 1947 was valid. The argument of the Union was that the industry in question was “carried on under the authority of the Central Government” and the reference could, therefore, be made only by the Central Government. The Court held that the words “under the authority” mean “pursuant to the authority, such as where an agent or a servant acts under of pursuant to the authority of his principal or master” and on this view, the Court addressed itself to the question whether the Corporation could be said to be carrying on business pursuant to the authority of the Central Government. The answer to this question was obviously ‘no’ because the Corporation was carrying on business in virtue of the authority derived from its memorandum and articles of association and not by reason of any authority granted by the Central Government. The Corporation, in carrying on business, was acting on its own behalf and not on behalf of the Central Government and it was therefore not a servant or agent of the Central Government in the sense that its actions would bind the Central Government. There (1) [1969] INSC 50; [1969] 3 S. C. R. 773, (2) [1969] 3 S. C. R 995.

1051 was no question in this case whether the Corporation was an instrumentality of the Central Government and therefore an ‘authority within the meaning of Article 12. We may point out here that when we speak of a Corporation being an instrumentality or agency of Government, we do not mean to suggest that the Corporation should be an agent of the Government in the sense that whatever it does should be binding on the Government. It is not the relationship of principal and agent which is relevant and material but wether the Corporation is an instrumentality of the Government in the sense that a part of the governing power of the State is located in the Corporation and though the Corporation is acting on its own behalf and not on behalf of the Government, its action is really in the nature of State action. This decision dealing with an altogether different point has no bearing on the present issue.

We may then refer to the decision in S. L. Aggarwal v.

General Manager, Hindustan Steel Limited.(1) This decision has also no relevance to the point at issue before us, since the only question in that case was wether all Assistant Surgeon in the employment of Hindustan Steel Limited could be said to be holding a civil post under the Union or a State so as to be entitled to the protection of Article 311(2) of the Constitution. The Court held that Hindustan Steel Limited was not a department of the Government nor were its employees holding posts under the State within the meaning of Article 311(2). The decision was clearly right and indeed it could not be otherwise since Hindustan Steel Limited, which was a distinct and independent legal entity, was not a department of the Government and could not be regarded as State for the purpose of Article 311(2). It may be noted that the Court was not concerned with the question whether Hindustan Steel Limited was an ‘authority’ within the meaning of Articlc 12.

Lastly, we must refer to the decision in Sarbhajit Tewari v. Union of India & ors.(2) where the question was whether the Council of Scientific and Industrial Research was an ‘authority’ within the meaning of Article 12. The Court no doubt took the view on the basis of facts relevant to the constitution and functioning of the council that it was not an ‘authority’, but we do not find any discussion in this case as to what are the features which must be present before a corporation can be regarded as an ‘authority’ within the meaning of Article 12. This decision does not lay down any principle or test for the purpose of determining when a corporation can be said to be an ‘authority’. If at all any test can be gleaned from the decision, it is (1) [1969] INSC 343; [1970] 3 S. C. R. 363.

(2) [1975] INSC 44; [1975] 1 S. C. C. 485.

1052 whether the Corporation is ‘really an agency of the Government”. The Court seemed to hold on The facts that the Council was not an agency of the Government and was, therefore, not an ‘authority’.

We may examine, in the light of this discussion, whether the 1st respondent, namely, the International Airport Authority of India,, can be said to be an authority falling within the definition of ‘State’ in Article 12. It is necessary to refer to some of the provisions of the International Airport Authority Act, 1971 (hereinafter referred to as the Act) for the purpose of determining this question. Sub-section (1) of section 3 of the Act provides that the Central Government shall constitute an authority to be called the International Airport Authority of India, to whom we shall hereafter refer as the 1st respondent. Sub- section (2) states that the 1 st respondent shall be a body corporate having perpetual succession and a common seal and sub-section (3) enacts that the Ist respondent shall consist of a Chairman to be appointed by the Central Government, the Director General of Civil Aviation exofficio and not less than six and not more than thirteen members to be appointed by the Central Government. The term of office of every member of the 1st respondent is prescribed by sub-section (1) of section 5 to be 3 years, but the Central Government is given under the Proviso power to terminate the appointment of any member who is not a servant of the Government after giving him notice as also to terminate at any time the appointment of any member who is a servant of the Government. The power to remove a member in certain specified circumstances is also vested in the Central Government under section 6. Section 32, sub-section (1) provides that as from the date appointed by the Central Government all properties and other assets vested in the p Central Government for the purposes of the airport and administered by the Director General of Civil Aviation immediately before such date shall vest in the 1st respondent and all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Central Government immediately before such date shall be deemed to have been incurred, entered into and engaged to be done by, with or for the 1st respondent. This sub-section also says that all non-recurring expenditure incurred by the Central Government for or in connection with the purposes of the airport upto the appointed date and declared to be capital expenditure by the Central Government shall be treated as the capital provided by the Central Government to the 1st respondent and all sums of money due to the Central Government in relation to the airport immediately before the appointed date shall be deemed to be due to the 1st respondent. The 1st respondent is also given the power to institute or continue all suits 1053 and other legal proceedings instituted or which could have been instituted by or against the Central Government for any matter in relation to the airport and every employee holding any office under the Central Government immediately before the appointed date solely or mainly for or in connection with the affairs of the airport shall be treated as on deputation with the 1st respondent. Sub-section (1) of section 12 also enacts similar provisions with regard to the air navigation services and the buildings used exclusively for such services immediately before the appointed date. The functions of the 1st respondent are specified in section 16:

sub-section (l) provides that, subject to the rules, if any, made by the Central Government in this behalf, it shall be the function of the 1st respondent to manage the airports efficiently and sub-section (2) casts an obligation on the 1 st respondent to provide at the airports such services and facilities as are necessary or desirable for the efficient operation of air transport services and certain specific functions to be performed by the 1st respondent are particularised in sub-section (3). These. functions were, until the appointed date, being carried out by the Central Government but now under Section 16 they are transferred to the ] st respondent. Section 20 provides that after making provision for reserve funds, bad and doubtful debts, depreciation in assets and an other matters which are usually provided for by companies, the 1st respondent shall pay the balance of its annual net profits to the Central Government. Section 21 requires the 1st respondent to submit for the approval of the Central Government a statement of the programme of its activities during the forthcoming financial year as well as its financial estimate in respect thereof at least three months before the commencement of each financial year and section 24 provides that the accounts of the 1st respondent shall be audited annually by the Comptroller and Auditor General and the accounts as certified by the Comptroller and Auditor General or any other person appointed by him in this behalf, together with the audit report thereon, shall be forwarded to the Central Government and the Central Government shall cause the same to be laid before both Houses of Parliament. The 1st respondent is also required by section 25 to prepare and submit to the Central Government, as soon as may be after the end of each financial year, a report giving an account of its activities during the financial year and this report has to be laid before both Houses of Parliament by the Central Government. The officers and employees of the 1st respondent are deemed by section 28 to be public servants and section 29 gives them immunity from suit, prosecution or other legal proceeding for anything in good faith done or intended to he done in pursuance of the Act or any rule or regulation made under it. Section 33 confers power on the Central Government 1054 to temporarily divest the 1st respondent from the management of any airport and to direct the 1st respondent to entrust such management to any other person. The Central Government is also empowered by section 34 lo supersede the 1st respondent under certain specified circumstances. Section 35 gives power to the Central Government to give directions in writing from time to time on questions of policy and provides that the 1 st respondent shall in the discharge of its functions, and duties, be bound by such directions.

Section 36 confers rule making power on the Central Government for carrying out the purposes of the Act and power to make regulations is conferred on the 1st respondent under section 37. Section 39 provides that any regulation made by the 1st respondent under any of the clauses (g) to (m) of sub-section (2) of section 37 may make it Penal to contravene such regulation.

lt will be seen from these provisions that there are certain features of the 1 st respondent which are eloquent and throw considerable light on the true nature of the 1st respondent. In the first place, the chairman and members of the 1st respondent are all persons nominated by the Central Government and the Central Government has also the power to terminate their appointment as also to remove them in certain specified circumstances. The Central Government is also vested with the power to take away the management of any airport from the 1st respondent and to entrust it to any other person or authority and for certain special reasons, the Central Government can also supersede the Ist respondent. The Central Government has also power to give directions in writing,, from time to time on questions of policy and these directions are declared binding on the 1st respondent. The 1st respondent has no share capital but the capital needed by it for carrying out its functions is provided wholly by the Central Government. The balance of the not profit made by the Ist respondent after making provision for various charges, such as reserve funds, had and doubtful debts depreciation in assets etc. does not remain with the 1st respondent and is required to be paid over lo the Central Government. The 1st respondent is also required to submit to the Central Government for its approval a statement of the programme of its activities as also the financial estimate and it must follow as a necessary corollary that the 1 st respondent can carry out only such activities and incur only such expenditure as is approved by the Central Government. The audited accounts of the 1st respondent together with the audit report have to be forwarded to the Central Government and they are required to be laid before both Houses of Parliament. So far as the functions of the 1st respondent are concerned, the entire department of the Central Government relating to the administration of airports and air nevigation services together with its 1055 properties and assets, debts, obligations and liabilities, contracts, causes A of action and pending litigation is transferred to the 1st respondent and the 1st respondent is charged with carrying out the same functions which were, until the appointed date, being carried out by the Central Government. The employees and officers on the 1st respondent are also deemed to be public servants and the 1st respondent as well as its members, officers and employees are given immunity for anything which is in good faith done or intended to be done in pursuance of the Act or any rule or regulation made under it. The 1st respondent is also given power to frame Regulations and to provide that contravention of certain specified Regulations shall entail penal consequence. These provisions clearly show that every test discussed above is satisfied in the case of the 1st respondent and they leave no doubt that the 1st respondent is an instrumentality or agency of the Central Government and falls within the definition of ‘State’ both on the ‘narrow view taken by the majority in Sukhdev v. Bhagat Ram (supra) as also on the broader view of Mathew, J., adopted by us.

It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, the 1st respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, but was bound to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders which required that only a person running a registered IInd Class hotel or restaurant and having at least S years’ experience as such should be eligible to tender. It was not the contention of the appellant that this standard or norm prescribed by the 1st respondent was discriminatory having no just or reasonable relation to the object of inviting tenders namely, to award the contract to a sufficiently experienced person who would be able to run efficiently a IInd class restaurant at the airport. Admittedly the standard or norm was reasonable and non-discriminatory and once such a standard or norm for running a IInd Class restaurant should be awarded was laid down, the 1st respondent was not entitled to depart from it and to award the contract to the 4th respondents who did not satisfy the condition of eligibility prescribed by the standard or norm. If there was no acceptable tender from a person who satisfied the condition of eligibility, the 1st respondent could have rejected the tenders and invited fresh tenders on the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbitrarily accept the tender of the 4th respondents. When the 1st respondent entertained the tender of the 4th respondents even though they did not have 5 years’ experience of running a IInd Class 1056 restaurant or hotel, denied equality of opportunity to others similarly situate in the matter of tendering for the contract. There might have been many other persons, in fact the appellant himself claimed to be one such person, who did not have 5 years’ experience of running a IInd Class restaurant, but who were otherwise competent to run such a restaurant and they might also have competed with the 4th respondents for obtaining the contract, but they were precluded from doing so by the condition of eligibility requiring five years’ experience. The action of the 1st respondent in accepting the tender of the 4th respondents, even though they did not satisfy the prescribed condition of eligibility, was clearly discriminatory, since it excluded other person similarly situate from tendering for the contract and it was plainly arbitrary and without reason.

The acceptance of the tender of the 4th respondents was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action.

Now, on this view we should have ordinarily set aside the decision of the,- 1st respondent accepting the tender of the 4th respondents and the contract resulting from such acceptance but in view of the peculiar facts and circumstances of the present case, we do not think it would be a sound exercise of discretion on our part to upset that decision and void the contract. It does appear from the affidavits filed by the parties that the appellant has no real interest in the result of the litigation, but has been put up by A. S. Irani for depriving the 4th respondents of the benefit of the contract secured by them. We find that a number of proceedings have been instituted for this purpose from time to time by A. S. Irani either personally or by instigating others to take such proceedings. The first salvo in the battle against the 4th respondents was fired by K. S.

Irani, proprietor of Cafe Excelsior, who filed a suit challenging the decision of the 1st respondent to accept the tender of the 4th respondents, but in this suit he failed to obtain an interim injunction and his appeal was dismissed by the High Court on 19th October, 1977. It is significant that when the tenders were opened in the office of the Airport Director, Cafe Excelsior was represented by A. S. Irani, which shows that either Cafe Excelsior was a nominee of A.

S. Irani or in any event K. S. Irani, proprietor of Cafe Excelsior, was closely connected with A. S. Irani. Moreover, it is interesting to note that though the tender of the 4th respondents was accepted as far back as 19th April, 1977, K.

S. Irani did not adopt any proceedings immediately but filed the suit only after A. S. Irani was informed by the Airport Director on 22nd August, 1977 that a final order has been received from the Ministry 1057 requiring A. S. Irani to immediately close down his restaurant and snack bars. It is also a circumstance not without significance that A. S. Irani did not immediately take any proceeding for challenging the acceptance of the tender of the 4th respondents, but filed a suit in his own name only after the appeal of K. S. Irani was dismissed by the High Court on 19th October, 1977. These circumstances clearly indicate that the suit was filed by K. S. Irani at the instance of A. S. Irani or in any event in concert with him and when the suit of K. S. Irani failed to achieve the desired result, A. S. Irani stepped into the arena and filed his own suit. This suit was for a mandatory injunction seeking removal of the two snack bars which had in the meantime’ been put up by the 4th respondents pursuant to the acceptance of their tender by the 1st respondent. But in this proceeding also A. S. Irani failed to obtain an ad- interim injunction. It was only after the failure to obtain interim relief in these two proceedings, one by K. S. Irani and the other by A. S. Irani, that the appellant filed the present writ petition in the High Court of Bombay challenging the decision of the 1st respondent to accept the tender of the 4th respondents. Now, it appears from the record that the appellant was at the material time conducting a restaurant called Royal Restaurant and Store which was owned in partnership by three persons, namely, J.

K. Irani, K. M. Irani and G. S. Irani. G. S. Irani is the brother of A. S. Irani and he was managing and looking after the restaurant of A. S. Irani at the airport. It would, therefore, be a fair inference to make that the appellant was well connected with A. S. Irani and from the manner in which proceedings with a view to thwarting the attempt of the 4th respondents to obtain the benefit of their contract, have been adopted one after the other in different names, it does appear that the appellant has filed the writ petition at the instance of A. S. Irani with a view to helping him to obtain the contract for the restaurant and the snack bars.

It is difficult to understand why the appellant should have waited until 8th November, 1977 to file the writ petition when the tender of the 4th respondents was accepted as far hack as 19th April, 1977. The explanation given by the appellant is that he was not aware of the acceptance of the tender of the 4th respondents but that is a rather naive explanation which cannot be easily accepted It is not possible to believe that the appellant who was so well connected with A. S. Irani and G. S. Irani did not know that A. S. Irani had failed to obtain the contract for running the restaurant and the snack bars and that this contract had been awarded to the 4th respondents as a result of which A.

S. Irani was being pressed to close down his restaurant and snack bars. We have grave doubts whether this writ petition was commenced by the appellant bona fide 1058 with a view to protecting his own interest. Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of the 4th respondents and during this period, the 4th respondents incurred considerable expenditure aggregating to about Rs.

1,25,000/- in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most inequitous to set aside the contracts of the 4th respondents at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of the 4th respondents but the appellant allowed a period of over five months to elapse during which the 4th respondents altered their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 136 read with Article 226 of the Constitution.

We accordingly dismiss the appeal and confirm the order of the High Court rejecting the writ petition. But in the circumstances of the case there will be no order as to costs throughout.

P.B.R Appeal dismissed.

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