Brief case analysis of State of West Bengal v. Anwar Ali Sarkar

INTRODUCTION

State of West Bengal v. Anwar Ali Sarkar [1] is one of the landmark cases of the judicial scenario in India. The said case dealt with West Bengal Special Courts Act, Construction of the said Act, Article 14 of constitution of India, empowerment of State government of discretion, Reference to preamble test of equality before law, necessity for speedier trial, and reasonable ground for discrimination.

State of Bengal appealed in Supreme Court of India to overrule the judgement given by High Court of Calcutta. The issue raised by the petitioner was constitutional validity of West Bengal Special Courts Act (X of 1950) which was entitled as “An Act to provide for the speedier trial of certain offences”. The applicant challenged it on the grounds of Article 14. Also, section 5(1) of the act was constitutionally challenged as it was submitted that the said section gives arbitrary power and authority to the state government to refer any ‘case’ or ‘class of cases’ to Special Courts without a reasonable classification. The issue also included inclusion of any individual ‘case’ besides the ‘class of cases’.

The Supreme court however, dismissed the appeal and held the act bad on the grounds that the Act do give arbitrary power to the state government and it may happen that they may use this power being prejudiced or under sway of emotion or in their own interest and hence, the act does violates equality before law and equal protection of laws.

STATEMENT OF FACTS

A. Special Courts were introduced in West Bengal under section 3 of the West Bengal Special Courts ordinance, 1949, (Ordinance No. 3 of 1949) which was replaced in March, 1950, by the West Bengal Special Courts Act, 1950, (West Bengal Act X of 1950), for the speedier trials of some cases which were to be referred to Special Courts by the State Government.

B. A case, the Special court tried under a notification under section – 5 of the said Act, and Mr. Anwar Ali and 49 others were tried for various offences alleged to be committed by them in the course of raiding a factory, known as Jessop Factory, as an armed gang, and were convicted and sentenced to varying terms of imprisonments.

C. The accused applied in High Court under Article 226[2] of Constitution of India for the issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case as section – 5 of the said act is unconstitutional and void under Article 13(2)[3] of constitution of India, as it denied to the respondent, equal protection of laws enjoined by Article 14[4] of constitution of India.

D. The High court by a full bench consisting of the Chief Justice and four other judges quashed the conviction and directed the trial of the respondent and the other accused people according to law. Hence the appeal.

COURT’S DECISION

The Supreme Court held that Section 5(1) of the West Bengal Special Courts Act contravened Article 14 and was void since it conferred arbitrary power on the Government to classify offences or cases at its pleasure and the Act didn’t lay down any policy or guideline for the exercise of discretion to classify cases or offences at its pleasure and the act didn’t lay down any policy or guidelines for the exercise of discretion to classify cases or offences. The procedure laid down by the Act for the trial by the special courts varied substantially from the procedure laid down for the trial of offences generally by the criminal procedure court.

The differentia which is the basis of classification and the object of the Act are two distinct things. What is necessary is that there must be a nexus between the basis of classification and the object of the Act which makes the classification. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory. Thus, legislature may fix the age at which persons shall be deemed contempt to contract between themselves but no one will claim that competency. No contract can be made to depend upon the stature or colour of the hair. Such a classification will be arbitrary.

Law doesn’t include administrative directions or instructions issued by the government for the guidance of its officers.

There can be no discrimination both in substantive as well as procedural law.

RATIO DECIDENDI AND OBITER DICTA

“… When an act gives power which may and can offend against a provision or provisions of the Constitution, such an act is ultra vires though it could be administered so as not to offend against the Constitution”

“Reasonable Classification” was the test applied by Harries C.J, and it was held that, although the need for a speedier trial than what is possible under the procedure prescribed by the Code of Criminal Procedure might form the basis of a reasonable classification, but as it vest in the State government an absolute and arbitrary power to refer to special courts for trial of “any cases, which must include an individual case, “whether or not the duration of such case is likely to be long”, and hence was regarded violative of Article 14 of constitution.

Das Gupta J., supported the ruling of Harries C.J on the grounds that though the preamble clearly states the main object of the act, but however, general expressions used in the language of provisions of the act would impute to the legislature an intention to confer an arbitrary power of reference which would be inconsistent not only with the constitutional prohibition against discrimination, which the legislature must be taken to have been aware of when it deliberately re–enacted the provisions of the old Ordinance. Also, the discretion vested in State Government in selecting cases for reference to a special court may not be subject to judicial review and may, in that sense, be absolute.

Article 14 secures all persons within the territories of India against arbitrary law as well as arbitrary actions of law. This is further made clear by defining “law” in Article 13 as including, among other things, any “order” or “notification”, so that even executive order or notifications must not infringe Article 14. Also, reasonableness of classification comes into question only in those cases where special legislation affecting a class of persons is challenged as discriminatory. Nor could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory.

Fazl Ali J. stated – The framers of the act have merely copied the provisions of Ordinance of 1949 which was promulgated when there was no provision similar to article 14 of the present Constitution. Moreover, the framers of the Criminal Procedure code also were alive to the desirability of having a speedy trial in certain classes of cases, and with this end in view they made four different sets of provisions for the trial of four classes of cases, these being provisions relating to summary trials, trial of summon cases, trial of warrant cases and trial of cases triable by a court of session. Broadly speaking, their classification of offences for the purpose of applying these different sets of provisions was according to offences, though in classifying the offences fit for summary trial the experience and power of the trying magistrate was also taken into consideration.

But, the impugned act has completely ignored the principle of classification followed in the Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. Indeed sect – 5 of the act, which is the most vital section, badly states that the “Special Court sball try such offences or classes of offences, as the state government may, by general or special order in writing direct”. And as already stated, the act is a verbatim copy of the earlier Ordinance which was framed before the Constitution came into force, and article 14 could not have been before the minds of those who framed it because Article 14 was not in existence.

Mahajan J stated – It is no classification at all in the real sense of term as it is not based on any characteristic which are peculiar to persons or to cases which are to be subject to special procedure prescribed by the act. The mere fact of classification is sufficient to relieve the statute from the reach of the equality clause of Article 14.

Persons concerned in offences or cases needing so called speedier trial are entitled to inquire ‘Why are they being made the subject of a law which has short circuited the normal procedure of trial; Why has it grouped them in that category and why has the law deprived them of the protection and safeguards which are allowed in the case of accused right under the procedure mentioned in the Criminal Procedure Code; What makes the legislature or the executive to think that the cases need speedier trials then those of others like them.

The act has left this matter entirely to the unregulated discretion of the provincial government.

Das J. – There is no dispute that the question of validity of section 5 of the impugned act has to be determined in the light of provisions in Constitution of India. A comparison between the language of those sections of the Code of Criminal Procedure and of the impugned act will clearly show that the Act has gone beyond the provisions of the Code and the Act cannot by any means be said to be an innocuous substitute for the procedure prescribed by the Code. The far – reaching effect of the elimination of committal proceedings cannot possibly be ignored merely by stating that warrant procedure under the code in a way also involves a committal by the trial Magistrate, namely to himself, for the warrant procedure minimises the chances of the prosecution being thrown out at the preliminary stage.

The object of the Act as recited in the preamble of the Act cannot be the basis of classification and this section 5(1) gives an uncontrolled and unguided power of classification which may well be exercised by the state government capriciously or “with an evil eye and an unequal band”

Section-6 of the Act which lays down that the Special Courts may take cognizance of an offence without the accused being committed to it for trial, and that in trying the accused it has to follow the procedure for trial of warrant cases by Magistrate. In warrant case, the entire proceeding is before the same Magistrate and the before the same officer who frames the charge hears the case finally. In a Sessions case, on the other hand, the trial is actually before another Judge, who was not connected with the earlier proceeding. It was also clear the committal before the Sessions Judge actually hears the case; there is generally a large interval of time which gives the accused ample opportunity of preparing his defence. He cannot have the same advantage in a warrant case even if adjournment is granted by the Magistrate after the charge is framed. This is one of the matters upon which the normal procedure has been departed from in the Special Courts Act.

It is stated that it is only when speedier trial is necessary that the discretion should be exercised. The word used here is “speedier” which is a comparative term and as there may be degrees of speediness, the word undoubtedly introduces an uncertain and variable element.

“It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad”.

CONCLUSIONS AND SUGGESTIONS

The case of State of West Bengal v. Anwar Ali Sarkar was decided by Hon’ble Supreme Court of India, in the favour of Anwar Ali Sarkar, deciding the West Bengal Special Courts Act void, on the grounds that the act was violating the Article 14 of Constitution of India as the Act gave arbitrary, uncontrolled, unguided power to the State Government which could be used unreasonably and biasedly, and also restricted equal protection of laws. The Act failed to provide a reasonable classification between “cases”, “classes of cases”, offences” and “classes of offences”.

Also, it was held that classification of cases as already done in the Code of Criminal Procedure was reasonable and such reasonableness didn’t meet the classification as done in the impugned Act. Moreover, the Code already provided the classification of cases which are to be provided with speedy trial and no adequate need was seen of the Act.

The State Government had revised the Act which was enacted in 1949 and exact provisions were revised in the Act. This was seen as the State Government deliberately ignored the holding of arbitrary power of reference.

Suggestions

The West Bengal Special Courts Act though gave an arbitrary power to the State Government to refer cases to special court, but it didn’t reduce the judicial power or authority of judges. So, even if the cases had arbitrarily referred to the Special Courts, the justice would be the same as the judiciary was not taken under the control of State Government.

Fault on the behalf of State Government was also seen as they without any modification in the earlier ordinance, re-enacted the Act, without taking into consideration that Ordinance was passed prior 1950 and therefore could be lacking many provisions of Constitution of India.

The case had many aspects and The Hon’ble Supreme Court left no doubt over the scope of Article 14 in dealt case. Not with a complete, but with a majority, and reasons for the conclusions, greatly observed the case quashing the appeal of State of West Bengal.


[1] AIR 1952 SC 75

2  Article 226. Power of High Courts to issue certain writs.-

(1) Notwithstanding anything in article 32  every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.]

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.]

(4)] The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

[3] The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

[4] The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

 

Vaibhav Sharma 
on 19 December 2016
Published in Constitutional Law
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