Kathi Raning Rawat v. the State of Saurashtra

Judgment

criminal jurisdiction for such areas as may be specified in the notification. Section IO relates to appointment S.C.R. of Special Judges who are to preside over such courts and section 11 lays down that the Special Judge shall try "such offences or classes of offences ........ or classes of cases as the Government of United State of Saurashtra may, by general or special order in writing, -~Iirect." The procedure to be followed by the Special Judges 'is set out in sections 12 to 18 of the Ordinance. In substance the Special Court is given the status of a sessions court, although committal proceedings is eliminated and so also is trial by jury or with the aid of assessors.

The Special Judge has only to make a memorandum of the evidence and he can refuse to summon any wftness if he is satisfied after examination of the accused that the evidence of such witness would not be material. 'section 16(1) curtails the period of litn.itatiqn within whicli an accused convicted by the Special Judge has to file his appeal before the High Court and clause (3) of the section provides that no court shall have jurisdiction to transfer any case .from any Special Judge or make any order under section 491 of the Criminal Procedure Code. The ordinance certainly lacks some of the most objectionable features of the West Bengal Act. Thus it has not taken away the High Court's power of revision, nor does it expose the accused to the chance of being convicted of a major offence though he stood charged with a minor one. There is also no provision in the ordinance similar to that in the West Bengal Act which enables the court to proceed with the trial in the absence of the accused.

But although the ardinance in certain respects compares favourably with the West Bengal Act, the procedure which it lays down for the Special Judge to follow does differ on material points from the normal procedure prescribed in the Criminal Procedure Code and as these differences abridge the rights of the accused who are to be tried by the Special Court, and deprive them of certain benefits to which they would otherwise have been entitled under the general law, the ordinance prim a f acie makes discrimination and the question has got to be answered whether such discrimination brings it in conflict with article 14 of the Constitution. Kathi Ran in g Rawat The State of Saura1htr11. Mukherjea /. 195.2 Kathi Raning Rawat . Tk State of Saurtuhtra. Muk._herjea J, (1952] The nature and scope of the guarantee that is implied in the equal protection clause of our Constitution have been explained and discussed in more than one decision of this court and do not require repetition.

It is well settled that a legislature for the purpose of dealing with the complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom . the legislation is 1:9 operate. The consequence of such classification would undoubtedly be to differentiate the persons belonging to that class from others, but that by itself would not make the legislation obnoxious to the equal protection clause. Equality prescribed by the Constitution would not be violated if the statute operates equally on all persons who are included in the group, and the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view.

The legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives of the legislation, that necessity of judicial interference arises. Section 11 of the Saurashtra Ordinance so far as it is material for our present purpose lays down that a Special Court shall try such offences or classes of offences... or classes of cases as the State Government may .. direct". This part of the section undoubtedly contemplates a classification to be made of offences and cases but no classification appears on the terms of the statute itself which merely gives an authority to the State Government to deterrnine what classes of cases or offences are to be tried by the special tribunal.

The question arises at the outset as to whether such statute is not on the face of it discriminatory as it commits to the discretion of an administrative body or officials the: duty of_ making selection or classification for purposes of the legislation; and there is a still further question, namely, by what . tests, if any, is the propriety of the administrative action to be adjudged and what would be the remedy of the aggrieved person if the S.C.R. classification made by the administrative body is arbitrary or capricious? It is a doctrine of the American courts which seems to me to be well-founded on principle that the equal protection clause can be invoked not merely where discrimination appears on the express terms of the statute itself, but also when it is the result of improper or prejudiced execution of the law().

But a statute will not necessarily be condemned as discriminatory, because it does not make the classification itself but, as an effective way of carrying out its policy, vests the authority to do it in certain officers or administrative bodies. Illustrations of one class of such cases are to be found in various regulations in the U. S. A. which are passed by States in exercise of police powers for the purposes of protecting public health or welfare or to regulate trades, bu~iness and occupations which may become unsafe or dangerous when unrest.rained. Thus there are regulations where discretion is lodged by law irr public officers or boards to grant or withhold licence to keep taverns or sell spirituous liquors(2), · or other commodities like milk( 3 ) or cigarettes{').

Similarly, there are regulations relating to appointment of river pilots(5) and other trained men necessary for particularly difficult jobs and in such cases, ordinarily, conditions are laid down by the statute, on compliance with which a candidate is considered qualified. But even then the appointI!lcnt board has got a discretion to exercise and the fact of the candidate for a particular post is submitted to the judgment of the officer or the board as the case may be. It is true that these cases are of a somewhat different nature than the one we arc dealing with; but it seems to me that the principle underlying all these cases is the same. The whole problem is one of choosing the method by which the legislative policy is to be eff ectuated. As has been observed by Frankfurter J. in (I) Vitle Weaver on Constitutional Law, p. 404. (2-) Crowley v. Christensen, 137 US. 86. (3) People of the State of New York v. Toh. E. V.rn De C•rr, 199 U.S. 552. ( 4) G11ndlint v. Cliic1110, 177 U.S. 183.

(5) Kotd v. BOlll'tl of Ri"" Pon Pilot Commissioners, 330 U.S. 552. Kathi Raning RaU.at The State of • Saurashtra. M u'l(,l1erjea T. [1952] Tinger v. Texas('), "laws are not abstract propos1t1ons Kathi &ming b~t are expressions of policy arising out of specific Rawfll difficulties addressed to the attainment of specific ends by the use of specific remedies." In my opinion, if The State of the legislative policy is clear and definite and as an Saurashtra. ., e_ffec~'ve method of carrying out that policy a discre- Muk,,herjea /. tion 1s vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself ·cannot be condemned as a piece of discriminatory legislation. After all "the law does all that Is needed when it does all that it can, indicates a policy .•• and seeks to bring within the lines all similarly situated so far as its means allow(2)''.

In such cases, the power given to the executive body would inlport a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. The discretion that is conferred on official agencies in such circumstances is not an unguided discretion; it has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tested. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can certainly be annulled as offending against the equal protection clause.

On the other hand, if the statute itself does not disclose a definite policy or objective and it corifer& authority on another to make ·selection at its pleasure, the statute would be held on the face of it to be discriminatory irrespective of the way in which it is applied. This, it seems to me, is the true principle underlying the decision of the Supreme Court of America in Yick W o v. Hopkins('). The object of the ordinance of the City and County of San Francisco, which came up for consideration in that case, was, as found by the court, not to regulate laundry business in that locality in the interests of the general public ('). The business was (1) 310 U.S. 141at147. (2) Vide Buck v. Bell, 214 U.S. 200, 208. (3l 118 u. s. 356. 13 (4 Vide the observations of Field J. in Crowley v. Christensen, 7 u. s. 86, 94. II S.C.R. harmless m itself and useful to the community.

No policy was indicated or object declared by the legislature, but an uncontrolled discretion was given to the Board of Supervisors who could refuse license at their pleasure to anybody carrying on laundry business in wooden buildings. The classification contemplated by the statute was an arbitrary classification depending on the caprice of the Board, and consequently it was condemned as discriminatory on the face of it; its application against the Chinese was a confirmation of the discriminatory character and the really hostile intention of the legislation. I would be inclined to think that the West Bengal case, which we have decided already, comes with'in the purview of this principle, as the desirability of "speedier trial", which is hinted at in the preamble to the West Bengal Act, is too vague, elusive and uncertain a thing to amount to an enunciation of a definite policy or objective on the basis of which any proper classification could be made.

The matter has been left to the. unfettered discretion of the State Government which can classify offences or cases in any way they like without regard to any objective and as such the statute is open to the challenge of making arbitrary discrimination. The point that requires consideration 'is, whether the Saurashtra Ordinance presents any distinguishing features or occupies the same position as the West Bengal Act? As has been stated already, section 11 of the Saurashtra Ordinance is worded in exactly the same manner as section 5(1) of the West Bengal Special Courts Act; and that part of it, with which we are here concerned authorises the State Government to direct any classes of offences or cases to be tried by the special tribunal. The State Government, therefore, has got to make a classification of cases or offences before it issues its directions to the Special Court. The question is, on what basis is the classification to be made?

If it depends entirely upon the pleasure of the State Government to make any classification it likes, without any guiding principle at all, it cannot certainly be a proper classification, which requires that a reasonable relation must exist 1....:.5 S, C, India /71 Kathi Raning Rawat The State of Saurashtra. Muk.herjea f. Kathi Rani111 Rawat The ·state of Mukherjea /. Mukherjea /. [1952] between the classification and the objective· that the legislation has in view. On the other hand if the legislature indicates a definite objective and 'the discretion has been vested in the State Government as a means of ach'ieving that object, the law itself, as I have said above, cannot be held to be discriminatory, though the action of the State Government may be condemned if it offends against the equal protection clause, by making an arbitrary selection.

Now, the earlier ordinance, to which the present one is a subsequent addition by way of amendment, was passed by the Rajpramukh of Saurashtra on 2nd April, 1948. It is described as an ordinance to provide for the security of the State, maintenance of public order and maintenance of supplies and services essential to the community in the State of Saurashtra. The preamble to the ordinance sets out the objective of the ordinance in identical terms. It is to be noted that the integration of several States in Kathiawar which now form the State of Saurashtra, was completed some time in February, 1948. It appears from the affidavit of an officer of the Horne Government of the Saurashtra State that soon after the integration took place, an alarming state of lawlessness prevailed in some of the districts within the State. There were gangs of dacoits operating at different places and their number began to increase gradually.

As ordinary law was deemed insufficient to cope with the nefarious activities of those criminal gangs, the Saurashtra Public Safety Measures Ordinance was promulgated by the Rajpramukh on 2nd April, 1948. The Ordinance, as stated already, provided principally for preventive detention and imposition of collective fines; and it was hoped that armed with these extraordinary powers the State Government would be able to bring the situation under control. These hopes, however, were belied, and the affidavit gives a long list of offences in which murder and nose-cutting figure conspicuously in addition to looting and dacoity, which were committed by the <lacoits during the years 1948 and 1949. In view of this ugly situation in . the State, the new ordinance ·was S.C.R. passed on 11th of November, 1949, and this ordinance provides inter alia for the establishment of Special Courts which are to try offenders under a special procedure.

Acting under section 11 of the Ordinance, the Government issued a notification on 9/llth February, 1950, which constituted a Special Court for areas specified in the schedule, and here again the affidavit shows that all these areas are included in the districts of Gohilwad, Madhya Saurashtra and Sorath, where the tribe of marauders principally flourished. The object of passing· this new ordinance is identically the same for which the earlier ordinance was passed, and the preamble to the latter, taken ·along with the surroundmg circumstances, discloses a definite legislative policy which has been sought to be effectuated by the different provisions contained in the enactment. If Special Courts were considered necessary to cope with an abnormal situation, it cannot be said that the vesting of authority in the State Government to select offences for trial by such courts is in any way unreasonable ..

In the light of the principles stated already, I am unable to hold that section 11 of the Ordinance in so far as it authorises the State Government to direct classes of offences or cases to be tried by the Special Court offends against the provision of the equal protection clause m our Constitution. If the notification that has been issued by the State Government proceeds on any arbitrary or unreasonable basis, obviously that could be challenged as unconstitutional. It is necessary, therefore, to examine the terms of the notification and the list of offences it has prescribed. The notification, as said above constitutes a Special Court for the areas mentioned in the Schedule and appoints Mr. P. P. Anand as a Special Judge to preside over the Special Court. The offences triable by the Special Court are then set out with reference to the specific sections of the Indian Penal Code. Mr. Chibber attacks the classification of offences made in this Ii.st primarily on the ground that while it mentions offences of a particular character, it excludes at the same time other . offences of a cognate character m reference to Kathi Raning Rawat The State of Saurashtra.

Mukherjea J. Kathi Ran in g Rawat The State of Saurashtra. Muk_herjea /. [1952] which no difference in treatment is justifiable. It is pointed out that while section 183 of the Indian Penal Code is mentioned in the list, sections 184, 186 and 188 which deal with similar offences are excluded. Similarly the list does not mention section 308, Indian Penal Code, though it mentions section 307. The learned counsel relies in this connection upon the decis\on of the Supreme Court of America in Skinner v. Oklahoma('). In that case the question for consideration related to the constitutionality of a certain statute of Oklahoma which provided for sterilization of certain habitual criminals who were convicted two or more times in any State of felony involving moral turpitude. The statute applied to persons guilty of larceny, which was a felony, but not to embezzlement, and it was held that the legislation violated the equal protection clause.

It is undoubtedly a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner, a person accused of one should not be treated differently from a person accused of the other, because it is an essential principle unde'rlying the equal protection clause that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. At tl1e same time it is to be noted as Douglas J. observed in the very case that in determining the reach and scope of particular legislation it is not necessary for the legilsJature to provide abstract symmetry. "It may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience." A too rigid iinsistance therefore on a .thing like scientific classification is neither practicable nor desirable.

It is true that the notification mentions section 183 of the Indian Penal Code, though it omits section 184; but I am unable to hold that the two are identically of the same nature. Section deals wlth resistance to the taking of property by the lawful authority of public servant; while section 184 relates to obstructing sale of property offered for sale {1) 316 U.S. 535. --lo- S.C.R. by authority of public servant. Section 186 on the other hand does not relate to the taking of property at all, but is concerned with obstructing a public servant in the discharge of his public duties. Then again I am not sure that it was incumbent upon the State Government to include section 308, Indiian Penal Code, in the list simply because they included section 307.

It is true that culpable homicide as well as attempt to murder are specified in the list; but an attempt to commit culpable homicide i,s certainly a less heinous offence and the State Government might think it proper, having regard to all the facts known to them, that an offence of attempt to commit culpable homicide does not require a special treatment. Be that as it may, I do not think that a meticulous examination of the various offences specified in the list with regard to their nature and punishment is necessary for purposes of this case. The appellant before us was accused of murder punishable under section 302 of the Indian Penal Code. There is no other offence, I believe, described in the Indian Penal Code, which can be placed on an identical footing as murder. Even culpable homicide not amounting to murder is something less heinous than murder, although it finds a place in the list.

In my opinion, the appellant can have no right to complain if he has not been agrieved in any way by any unjust or arbitrary classification. As he is accused of murder and dacoity and no offences of a similar nature are excluded from the list, I do not think that it is open to h'im to complain of any violation of equal protection clause in the notification. There are quite a number of offences specified in the notification and they are capable of being grouped under various heads. Simply because certain offences whiieh could have been mentioned along with similiar others in a particular group have been omitted therefrom, it cannot be said that the whole list is bad. The question of inequality on the ground of such omission can be raised only by the person who is directed to be tried under the special Kathi Raning Rawat The State of Saurashtra. Muk_herjea /. Kathi Raning Rat.vat . v. The State of Saurashtra.

[1952] procedure for a certain offence, whereas for commis~ sion of a similar offence not mentioned in the list another person has still the advantages of the ordinary procedure open to him. In my opinion, therefore, the first point raised on . behalf of the appellant cannot succeed. The other point urged by the learned counsel for the appellant which relates to the question of delegation of legislative authority by the Rajpramukh to the State Government admits, I · think, of a short answer. It is conceded by the learned counsel that the facts of this case are identical with those of King Emperor v. Benoarilal Sarma(') which was decided by the Privy Council. In fact, the language of section 5 of the Special Criminal Courts Ordinance (No. II of 1942) whkh came up for consideration in that case is almost the same as that of section 11 of the Saurashtra Ordinance.

It was held by the Privy Council that it was not a case of delegated legislation at all, but merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity. In other words, it was a case of conditional legislation coming within the rule of Queen v. Burah (2). The pronouncement of the Judicial Committee in Benoarilal's case(') has been accepted and acted upon by this court in more than one case and it is too late now to question its correctness. My conclusion, ltherefore, is that both the preliminary points must be disallowed and the appeal should be heard on its merits. DAS J.-The appellant before us was tried by a Special Court constituted under the Saurashtra Public Safety Measures (Third Amendment) Ordinance No. LXVI of 1949 for offences alleged to have been committed by him under · sections 302, 307 and 392 of the Indian Penal Code.

On December 20, 1950 he was found guilty of the offences charged against . him and was convicted and sentenced to death under section 302, (I) 72 I.A. 57. (2) 3 App. Cas. 889. S.C.R.: Indian, Penal Code, and to seven years' rigorous imprisonment under each of the charges under sections 307 and 392, Indian Penal Code, the sentences of imprisonment running concurrently. He appealed to the High Court of Saurashtra but the High Court, by its judgment pronounced on February 28, 1951, rejected h'is appeal and confirmed his conviction and the sentences passed by the Special Court. By its order made on March 21, 1951, however, the High Court granted him a certificate for appeal to this Court both under article 132 and article 134 (1) (c) of the Constitution. This appeal has accordingly been filed in this Court.

A preliminary point has been raised by learned counsel for the appellant, namely, that the Special Court had no jurisdiction to try this case and the whole trial and conviction .have been illegal and void ab initio and should be quashed in limine. It is necessary, for the disposal of the preliminary objection, to refer to the provisions of the Ordinance and the cfrcumstances in which the Special Court came to be constituted. In the beginning of 1948 the different States in Kathiawar were integrated into what is now the State of Saurashtra. About that time different dacoits indulged in lawless activ'ities in Kathiawar and in particular in the area now known as the districts of Gohilwad and Madhya Saurashtra and on the outskirts of Sorath that was formerly a district in Junagadh State. Their activities gathered such strength and virulence that the security of the State and the maintenance of public peace became seriously endangered.

In order to check their nefarious activities the Rajpramukh of the State of Saurashtra on April 2, 1948, promulgated Ordinance No. IX of 1948. The preamble of the Ordinance recited that it was "expedient to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra." That Ordinance gave power to the State Government to make orders, amongst other things, for detaining or restricting the movements or Kathi Raning Rawat . v. The State of Saurashtra. · Das/. K•thi Raning Rawat The State of Saur•shtra. Das/. [1952] actions of persons and impose collective fines. The Rajpramukh on April 5, 1948, promulgated another Ordinance No. XII of 1948 which extended to the State of Saurashtra the provisio1111 of the Code of Criminal Procedure (Act V of 1898) subject to certain adaptations and modifications mentioned in the Schedule thereto.

It appears from the affidavit of Ramnikrai Bhagwandas Vesavada, Assistant Secretray in the Home Depaitment, Government of Saurashtra, that the Ordinance was not sufliCient to cope with the activities of the gangs of dacoits and that cases of looting, dacoity, robbery, nose-cutting and murder continued as before and indeed increased in number, frequency and vehemence and it became impossible to deal with the offences at different places in separate Courts of law expeditiously. In view of the serious situatibn prevailing in those districts the Stiate of Saurashtra considered ,it necessary ' to constitute Special Courts and to provide for a special procedure of trials so as to expedite the disposal of cases in which offences. of certain specified kinds had been committed. The Rajpramukh of Saurashtra accordingly, on November 1949, promulgated Ordinance No. LXVI of 1949 called "The Saurashtra State Public Safety Measures (Third Amendment)

Ordinance, 1949", whereby it amended the Saurashtra State Public Safety Measures Ordinance (No. IX of 1948). By section 4 of the Ordinance No. LXVI of 1949 several section were added to Ordinance No. IX -0f 1948. Three of the sections thus added, which are material for our present purposes, were sections 9, 10 and 11 which run as follows:- Special Courts.-The Government of the United State of the Saurashtra may by notification In the Official Gazette constitute Special Courts of Criminal Jurisdiction for such area as may be specified in the notification. 10. Special Judges.-The Government of the United State of Saurashtra may appoimt a Special Judge to preside over Special Court constituted under section 9 for any area any person who has been :S.C.R. a Sessions Judge for a period of not less than 2 years under the Code of Criminal Procedure, 1898, as applied to the United State of Saurashtra. 11.

Jurisdiction of Special Judges.- A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra may, by general or special order in writing, direct." Pursuant to the provisions of the Ordinance as amended the State of Saurashtra issued a notification, the material part of which is as follows:~ "No. H/35-5-C-In exercise of the powers conferred bv sections 9, 10 and 11 of the Saurashtra State Public Safety Measures Ordinance, 1948, (Ordinance -No. IX of 1948), (hereinafter referred to as the said Ordinance), Government is pleased to direct- (i) That a Special Court of a Criminal Jurisdiction, (hereinafter referred to as the said Court) shall be constituted for the areas, mentioned in the schedule hereto annexed, and that the headquarters of the said Court ·shall be at Rajkot, (ii) that Mr. P. P. Anand shall be .appointed as a Special Judge to preside over the said Court and (iii) that the Special Judge hereby appointed shall try the following offences, viz.- ( a) offences under sections 183, 189, 190, 212, 216, 224, 302, 304, 307, 323 to 335, 341 to 344, 379 to 382, 384 to 389 and 392 to 402 of the Indian Penal Code 1860 (XLV of 1860), as adapted and applied to the United State of Saurashtra, and (b) all offences under the said Ordinance, except an offence punishable under sub-section ( 6) of section 2 · of the said Ordinance, in. so far as it relates to the contravention of an order made under clause (a) of subsection ( 1) of the said section."

The appellant having been charged with offences included in the Notification he was tried by the Special tt#· Court with the result I have mentioned. The pre- - liminary objection raised on his behalf is that section Kathi Raning Rawat The State of Saurashtra. Das]. Kathi N.aning Rawat The State of Saurashtra. Das/. [1952] 11 of the Ordinance is invalid in that (a) it offends against article 14 of our Constitution, and (b) it authorises illegal delegation of legislative power to the State Government. In support of the first ground on which the preliminary objection is founded reliance is placed by learned counsel for the appellant on the judgment of this Court in Case No. 2'Yl of 1951 (The State of West Bengal v. Anwar Ali Sarkar). That case was concerned with the validity of the trial of the respondent therein by a Special Court constituted under the provisions of the West Bengal Special Courts Act, 1950 (West Bengal Act X of 1950).

The preamble to that Act recited that it was "expedient to provide for the speedier trial of certain offences". Sections 3, 4 and 5 (1) of the West · Bengal Special Courts Act, 1950, reproduced substantially, if not verbatim, the provisions of sections 9, IO and 11 of the Saurashtra Ordinance of 1948 as subsequently amended. The notification issued by the State of West Bengal under that Act was, however, different from the notification issued by the State of Saurashtra in that the West Bengal notification directed certain specific "cases" to be tried by the Special Court constituted under the West Bengal Special Courts Act. That notification had obviously been issued under that part of section 5 ( 1) of the West Bengal Special Courts Act which authorised the State Government to direct particular "cases" to be tried by the Special Court.

A majority of this court held that at any rate section 5 ( 1) of the West Bengal Special Courts Act in so far as it authorised the State to direct "cases" to be ·tried by the Special Court and the notification issued thereunder offended against the provisions of article 14 of the Constitution and as such were void under article 13. The Saurashtra notification, however, has been issued quite obviously under that part of section 11 which authorises the State Government to direct "offences", "classes of offences" or "classes of cases" to be tried by the Special Court and the question before us on the present appeal is whether that part of section 11 nnder S.C.R. which the . present notification has been issued offends against the equal protection clause of our Constitution.

It is contended that the opm1on expressed by the majority of this Court in the West Bengal case on the corresponding part of section 5 (1) of the West Bengal Special Courts Act was not necessary for the purposes of that appeal and requires reconsideration. After referring to our previous decisions m Chiranjit Dal Choudhury v. The Union of India and Others(1) and The State of Bombay v. F. N. Balsara(2), I summarised the meaning, scope and effect of article 14 of our Constitution, as. I understand it, in my judgment in the West Bengal case which I need not repeat but to which I fully . adhere. It 1s now well established that while article 14 forbids class legislation it does not forbid reasonable classification fur the purposes of legislation.

In order, however, to pass the test of permissible classification, two condi'tions must be fulfilled, namely, (i) that the classification must be founded on an intel- 'ligible differentia whlch distinguishes persons or things that are grouped together from others left out of the group, and (ii) that ·that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. It will be noticed that section 11 of the Saurashtra Ordinance like section 5(1) of the West Bengal Special Courts Act, refers to four distinct categories, namely, "offences", "classes of offences", "cases" and "classes of cases" and empowers the State Government to direct any one or more of these categories to be tried by the Special Court constituted under the Act.

The expressions "offences", "classes of offences" and "classes of cases" clearly indicate and obviously imply a process of classification of offences or cases. ( 1) [1950] S. C. R. 869. (2) A. I. R. (1951) S. C. 318 at p. 326. [1951] S. C.R. 682. Kathi Raning Rawat The State of Saurashtra. DM /. Kathi Raning Rawat The State of Saurashtra. Das/. [1952] Prima facie those word~ do not contemplate any part!- cular offender or any particular accused in any particular case. The emphasis is on '"offences", "classes of offences" or "cla.%es of cases." The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offence.

In short, the classification implied in this part of the sub-section has no reference to, and is not directed towards, the singling out of any particular person as an object of hostile State action but is concerned only with the grouping of "offences", "classes of offences': and "classes of cases" for the purposes of the particular legislation as recited in its preamble. An argument was raised, as in the West Bengal case, that even this part of the section gave an un- . controlled and unguided power of classification which might well be exercised by the State Government capriciously or "with an evil eye and an unequal hand" so as to deliberately bring about invidious discrimination between man and man althougli both of them. were situated in exactly the same or similar circumstances.

I do not accept this argument as sound, for, the reasons I adopted in my judgment in the West Bengal case in repelling this argument apply with equal, if not with greater, force to the argument directed against the validity of the Saurashtra Ordinance. It is obvious that this part of section 11 of the Ordinance which, like the corresponding part 0£ section 5 ( 1) of the West Bengal Special Courts Act, confers a power on the State Government to make classification of "offences", "classes of offences" or "classes of cases", makes it the duty of the State government to make a proper classification, that is to say, a classification which must fulfil both conditions, namely that it must be based on some intelligible differentia distinguishing the offences grouped together from other offences and that that differentia must have reasonable relation to the object of the Act as recited in the preamble.

S.C.R. classification on a basis which does not distinguish one offence from another offence or which has no relation to the object of the Act will be wholly arbitrary and may well be hit by the principles laid down by the Supreme Court of the United States in Jack Skinner Oklahoma(1). On the other hand, as I observed in the West Bell.'Sal case, it is easy to visualise a situation 1 when certain offences, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a special treatment in order to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval ?

Does not the existence of :r the gangs of dacoits and the concomitant crimes committed on a large scale as mentioned in the affidavit filed on behalf of the State call for prompt and speedier trial for the maintenance of public order and the preservation of peace and tranquillity in the State and indeed of the very safety of the community? Do not 1 those special circumstances add a peculiar quality to the offences or classes of offences specified in the notification so as to distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to the State with power to classify them into a separate group and deal with them promptly?

I have no doubt in my mind that the surrounding circumstances and the special features mentioned in the affidavit referred to above furnish a very cogent and reasonable basis of classification, for they do clearly distinguish these offences from similar or even same ~pecies of offences committed eLsewhere and under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the maintenance of public order, the preservation of public safety, the peace and tranquillity of the State. Such a classification (1) 216 U.S. 535; L, Ed. 1655. Kathi Raning' Rawat The State of Saurashtra. Das/. Kathi Raning Rawat The State of Saurashtra. Das].

[1952) will not be repugnant to the equal protection clause of our Constitution, for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike apd sent up before a Special Court for trial under the specia1 procedure. Persons thus· sent up for trial by a Special Court according to the special procedure cannot point their lingers to the other persons who may be charged before an ordinary Court with similar offences alleged to have been committed by them in a different place and in different circumstances and complain of un- . equal treatment, for those other persons are of a different category and are not their equals. In my judgment, this part of the section,· properly construed and understood, does not confer an uncontrolled and unguided power on the State Government.

On the contrary, this power, is controlled by the necessity for making a proper classification which is to be guided by the preamble in the sense that the classification must have a rational relation to the object of the Act as recited in the preamble. It is, therefore, not an arbitrary power. The Legislature has left it to the State Government to classify offences or classes of offences or classes of cases for the purpose of the Ordinance, for the State Government is in a better position to judge the needs and exigencies of the State and the Court will not lightly interfere with the decision of the State Government.

If at any time, however, the State Government classifies offences arbitrarily and not on any reasonable basis having a relation to the object of the Act, its action will be either an abuse of its power if it is purposeful, or in excess of its powers even if it ~ done in good faith, and in either case the resulting discrimination will encounter the challenge of the Constitution and the Court will strike down, not the law which is good, but the abuse or misuse or the unconstitutional admillistration of the law creating or resulting in unconstitutional discrimination. In this case, however, the facts stated in the affidavit filed on behalf of the. Stat~ n_iake i~ ~bundanrly ~ S.C.R. clear that the situation in certain parts of the State was sufficient to add a particularly sinister quality to certain specified offences committed within those parts and the State Government legitimately grouped them together in the notification.

The criticism that the State Government included certain offences but excluded certain cognate offences has been dealt with by my learned brother Mukherjea and I have nothing more to add thereto. In my opinion, for reasons given in my judgment in the West Bengal case and referred to above; section 11 of the Saurashtra Ordinance in so far as it authorises the State Government to direct offences or classes of offences or classes of cases to be tried by the Special Court does not offend against the equal protection clause of our Constitution and the notification which .it has been issued under that part of the section cannot 7 be held to be invalid or ultra vires. I On the question of delegation of legislative power the matter appears to be concluded by the decision of the Privy Council in Benoarilal's ca:se(1) and the section may well be regarded as an instance of conditional legislation.

Further, I would be prepared to say, for reasons stated in my judgment in the President's Reference(2) that there has been no illegal delegation of legislative power. For reasons stated above, I agree that the perliminary point should be rejected and the appeal should be heard on its merits. CHANDRASEKHARA AIYER J.-Mr. Sen tried his best to distinguish this case from our decision on the West Bengal Special Courts Act, 1950, The SMte of West Bengal v. Anwari Ali Sarkar and Gajan Mali('). But in my view he has not succeeded in his attempt. Sections 9 and 11 of the Ordinance in qu~taion do not lay down any classification in themselves. The preamble to the earlier Ordinance of 1948, which is still intact as the later one is only an amending (1) L.R. 72 I.A. 57. (3) Cases Nos. 297 & 298 of 1951. Since (2) [1951] S.C.R. 747. reported at [1952] S.C.R. 284. Kathi Raning Rawat The State of Saurashtra. Das]. Kathi Raning Rawat The State of Saurashtra. Chandrasekhara Aiyar /.

[1952] measure, merely refers to the need to provide for public safety, maintenance of public order, and the preservation of peace and tranquillity . in the State of Saurashtra. This by itself indicates no classification, as the object is a general one, which has to be kept in view by every enlightened government or system of administration. Every law dealing with the commission and the punishment of offences is based on this need. The notification under which the Special Court was established no doubt deals with "offences" as distinguished from "cases" or "groups of cases," but here also, there is no rational classification. Offences presenting the same characteristic features, and cognate in this sense, have been separately dealt withi some of them are to go before the Special Court, while others are left to be tried by the ordinary courts.

The circumstance that the deviations from normal procedure prescribed in the Ordinance are not so many or vital, as in the Bengal case, does not in my humble opinion, affect the result, as the defect of the absence of a reasonable or rational classification is still there. The negation of comlI}ittal proceedings is a matter of much moment to the accused, as it deprives him of the undoubted advantage of knowing the evidence for the prosecution and discrediting it by cross-exammation, leading possibly to his discharge even at that early stage. The argument for the respondent that there has been no discrimination as against the appellant vis a vis other persons charged with the same offences is unacceptable. Cognate offences have been left over for trial by the ordinary courts.

It is no answer to the charge by A of discriminatory legislation to say that B & C have also been placed in the same category as himself, when he finds that D, E & F also liable for the same or kindred offences have been left untouched and are to be tried by ordinary. courts under the normal procedure. Much importance cannot be attached to the affidavit of the Assistant Secretary to _the Government. It may be that all the facts stated by him as regards the frequency and locale of the particular I S.C.R. offences are true. But no such grounds for the classification are indicated, much less stated, either in the impugned Ordinance or notification. This is certainly not a legal requirement; but a wise prudence suggests the need for such incorporation, as otherwise the as- . certainment of the reasons for the classification from extraneous sources may involve the consideration of what may be regarded as after-thoughts by way of explanation or justification.

In my view, the West Bengal Special Courts Act decision governs this case also, and section 11 is bad. It is unnecessary to deal with the other point raised by the learned counsel for the appellants as regards the delegation of legislative powers involved in the pro tanto repeal of some of the provisions of the Criminal Procedure Code, viz., sections 5 and 28 and the Schedule, especially as it seems concluded against him by the decision in King Emperor Benoari Lal Sarma and Others(1). The convictions of the appellant and the sentences imposed on him are set aside, and there will be a retrial under the ordinary procedure. BosE J.-I agree with my brothers Mahajan and Chandrasekhara Aiyer that the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, offends article 14. As I explained in my judgment in The State of West Bengal v. Anwar Ali Sarkar(2), I prefer not to base my decision on the classification test.

For the reasons given there I am of opinion that the differentiation here travels beyond bounds which are legitimate. It is true the points of differentiation are not as numerous here as in the other case but the ones which remain are, in my judgment, of a substantial character and cut deep enough to attract the equality clauses in article 14. I would hold the Ordinance invalid. Preliminary objection overruled. Agent for the respondent : P. A. Mehta. (1) (1945) 72 I.A. 57. (2) [1952) S.C.'R. 284. + 1' 92 Kathi Rani•t Rilwflt The State of Saurashtr11 • Chandrasek_1'ar• A.iyl1f' /.