Kathi Raning Rawat vs The State of Saurashtra

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 15 of 1951

Decision Date: 27 February 1952

Coram: M. Patanjali Sastri, Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea, N. Chandrasekhara Aiyar, Vivian Bose

In the matter of Kathi Raning Rawat versus the State of Saurashtra, the Supreme Court delivered its judgment on the twenty-seventh day of February, 1952. The opinion was authored by Justice M. Patanjali Sastri, and the bench comprised Justices Saiyid Fazal Ali, Mehr Chand Mahajan, B. K. Mukherjea, N. Chandrasekhara Aiyar and Vivian Bose. The petitioner in the proceeding was Kathi Raning Rawat and the respondent was the State of Saurashtra. The case is reported in the 1952 volume of the All India Reporter at page 123 and in the Supreme Court Reporter at page 435, and it is cited in numerous later reports, including R 1952 SC 235, R 1953 SC 10, MV 1953 SC 156, R 1953 SC 404, RF 1954 SC 424, R 1955 SC 191, R 1956 SC 246, F 1957 SC 503, R 1957 SC 877, D 1957 SC 927, R 1958 SC 538, RF 1958 SC 578, RF 1959 SC 725, F 1960 SC 457, R 1961 SC 554, R 1961 SC 1602, R 1963 SC 806, RF 1964 SC 370, RF 1970 SC 564, RF 1974 SC 1389, RF 1974 SC 1660, R 1974 SC 2009, F 1974 SC 2044, R 1978 SC 68, R 1978 SC 597, R 1979 SC 478, R 1980 SC 1382, R 1981 SC 379, R 1981 SC 1829, R 1988 SC 1531, D 1990 SC 560 and C 1990 SC 820. The statutory provision under scrutiny was the Saurashtra State Public Safety (Third Amendment) Ordinance, numbered LXVI of 1949, specifically sections 9, 10 and 11, which authorised the State to constitute special courts for trying particular classes of offences. The judgment examined the constitutional validity of this ordinance, focusing on whether it infringed the fundamental right of equal protection of the laws guaranteed by Article 14 of the Constitution of India, and addressed the requirements for a valid classification and the permissibility of delegating legislative powers under Articles 13 and 14. The headnote explains that the original Public Safety Measures Ordinance of 1948 was enacted to safeguard public order, peace and tranquillity in Saurashtra, and that rising violent crimes prompted the 1949 amendment. The amendment empowered the State Government, via a Gazette notification, to create special criminal courts for designated areas, appoint special judges, and grant them jurisdiction over offences or classes of offences as directed by written orders. The procedural scheme prescribed by the ordinance differed from the Criminal Procedure Code in two significant respects: it omitted trial by jury, excluded the assistance of assessors, and removed the requirement of a preliminary enquiry before committing a case to the sessions court. In exercising the powers conferred by the ordinance, the State proceeded to constitute such a special court.

The Government, by issuing a notification, established a Special Court for designated areas and authorised that Court to try offences falling under sections 183, 189, 302, 304, 307, 392 and other specified sections of the Indian Penal Code, as expressly listed in the notification. The appellant, who had been convicted by the Special Court on charges under sections 302, 307 and 392 of the Indian Penal Code read with section 34, argued that the 1949 Ordinance and the accompanying notification contravened Article 14 of the Constitution and were therefore ultra-violet and void. The Court, speaking for Chief Justice Patanjali Sastri, Justices Fazl Ali, Mukherjea and Das, with Justices Mehr Chand Mahajan, Chandrasekhara Aiyar and Bose dissenting, held that the impugned Ordinance, insofar as it empowered the State Government to designate particular offences, classes of offences or categories of cases for trial before the Special Court, did not violate the provisions of Article 14 and was not ultra-violet or void. Accordingly, the notification issued under the Ordinance was also deemed valid. Chief Justice Patanjali Sastri observed that not every legislative differentiation constitutes discrimination. Discrimination, in this context, requires an element of adverse bias and must be understood accordingly. Claims of equal protection under Article 14 are examined presuming that State action is reasonable and justified. While differing procedural regimes may create disparities in the treatment of persons tried under them, such disparity alone does not suffice to overturn the presumption of reasonableness or to establish discrimination, unless the disparity exceeds what is necessary for the purpose, for example, by depriving an accused of a fair and impartial trial. The Court noted that the Ordinance was enacted to address the rising incidence of certain regional crimes, and that the two-fold classification based on type of offence and territorial area, as incorporated in the Ordinance and the subsequent notification, was reasonable. The degree of disparate treatment involved did not exceed what the circumstances warranted. The Court further rejected the extreme view that any procedural variation disadvantaging an accused automatically amounts to discrimination violating Article 14, as well as the opposite extreme that Article 14 offers no greater protection of personal liberty than Article 21. Justice Fazl Ali emphasized the need to distinguish between “discrimination without reason” and “discrimination with reason.” The doctrine of classification rests on this distinction and on the principle that differing circumstances governing one group may not apply to another, such that unequal treatment does not arise when persons are subject to distinct conditions and circumstances. The clear statement of a definite objective in both the earlier Ordinance and the amended Ordinance provided a tangible and rational basis for classification, and therefore the Ordinance and the notification did not breach Article 14.

The Court observed that the classification set out in the Ordinance and the accompanying notification provided a tangible and rational basis for distinguishing among the subjects covered, and therefore neither the Ordinance nor the notification violated Article 14 of the Constitution. The Court added in brackets that such legislation should be employed only in very special circumstances. The Court then explained that when a legislative policy is clear and definite, and the statute authorises a body of administrators or officers to apply the law selectively to particular classes or groups as an effective means of implementing that policy, the statute itself cannot be condemned as discriminatory legislation. In such situations, the power conferred on the executive body creates a duty to classify the subject matter in accordance with the objective articulated in the statute. The Court stated that if the administrative authority classifies persons or objects on a ground that bears no rational connection to the legislative objective, that classification may be set aside as a breach of the equal-protection clause. The preamble of the principal Ordinance (IX of 1948), taken together with the surrounding circumstances, disclosed a definite legislative policy and purpose; consequently, the impugned Ordinance could not be held unconstitutional merely because it empowered the Government to constitute Special Courts and to designate the categories of offences to be tried by those courts in order to achieve that purpose. The Court further held that the Government’s notification was not void, because it was not based on an unreasonable or arbitrary ground; rather, there was a reasonable relationship between the classification made by the notification and the objective contemplated by the legislation. While acknowledging that it is a sound proposition that when two offences are intrinsically alike and punishable in the same manner, an accused of one offence should not be treated differently from an accused of the other, the Court warned that the legislature is not required to create an abstract symmetry when determining the reach and scope of a particular law. A too-rigid insistence on scientific classification, the Court said, is neither practicable nor desirable. The Court then turned to Section 11, holding that, properly construed, it does not grant the State Government an unfettered, un-guided power; instead, the power is constrained by the need to make a proper classification, which must be guided by the preamble and must have a rational relation to the object of the Ordinance as expressed therein. Accordingly, the classification effected by the impugned Ordinance and the notification satisfied the two essential conditions for a valid classification: it was not arbitrary, it was based on an intelligible differentia, and that differentia bore a rational relation to the purpose sought to be achieved by the Act. On this basis, the Court concluded that neither the Ordinance nor the notification contravened Article 14 of the Constitution.

Section eleven of the impugned Ordinance was held to lack any reasonable basis for classification with respect to offences, cases, persons or groups, and it did not provide any measure by which such groups could be distinguished from those outside the Ordinance’s reach. The Court observed that the language of the pre-amble to the principal Ordinance and the provision in section nine allowing the power to be exercised in any specified area could not override the clear and unambiguous wording of section eleven; consequently, that section was declared unconstitutional. Justice Chandrasekhara Aiyar expressed that sections nine and eleven together failed to lay down any classification scheme, and that the pre-amble to the earlier Ordinance likewise indicated no classification because its object was a general one meant to be considered by every enlightened government or administrative system. Justice Bose added that the classification adopted in the notification was not a rational one and that the differentiation effected by the Ordinance and the accompanying notification exceeded the limits of legitimacy, thereby offending article fourteen of the Constitution and rendering the Ordinance invalid. The Court also ruled per curiam that the Ordinance was not invalid on the ground of delegating legislative powers. The judgments cited for principle included State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284, In re Delhi Laws Act 1912 [1951] S.C.R. 7471, and King Emperor v. Benoarilal Sarma [72 I.A. 57].

The matter was placed before the Criminal Appellate Jurisdiction as Criminal Appeal No. 15 of 1951, brought under articles 132(1) and 134(1)(c) of the Constitution of India against the order dated 28 February 1951 of the High Court of Saurashtra at Rajkot (Chief Justice Shah and Justice Chhatpar) in Criminal Appeal No. 162 of 1950. The material facts were set out in the earlier judgment. Amicus curiae counsel for the appellant was S.L. Chibber, while the respondent was represented by counsel B. Sen. The appeal was heard on 27 February 1952, and the judgments were delivered by Chief Justice Patanjali Sastri. The Court noted that the appeal raised questions under article 14 of the Constitution that were substantially similar to those considered in Criminal Appeal No. 297 of 1951, State of West Bengal v. Anwar Ali Sarkar. The hearing was adjourned to allow the State to file an affidavit explaining the circumstances that led to the enactment of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 (No. XLVI of 1949), hereinafter referred to as the impugned Ordinance. As in the West Bengal case, the jurisdiction of the Special Court of Criminal Jurisdiction that tried and convicted the appellant was challenged on the ground that the impugned Ordinance, under which the Court was constituted, was discriminatory and void. The objection was rejected by both the Special Judge and the High Court of Saurashtra on appeal, and the appellant now sought a decision of this Court on that point. The impugned Ordinance formed the subject of the submission.

In this case, the impugned legislation seeks to amend the Saurashtra State Public Safety Measures Ordinance, No IX of 1948, which had originally been enacted “to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra.” The amendment introduces sections 7 through 18, and these new provisions concern the creation of Special Courts of criminal jurisdiction in designated areas for the trial of particular classes of offences using a simplified and abbreviated procedure. Section 9 authorises the State, by means of a notification, to constitute Special Courts for “areas as may be specified in the notification.” Section 10 then provides for the appointment of Special Judges who are to preside over those courts. Section 11 further provides that a Special Judge shall try “such offences or classes of offences or such cases or classes of cases as the Government may, by general or special order in writing, direct.” The judgment subsequently references the report of this case as [1952] S.C.R. 284. Following these provisions, the ordinance sets out the procedural rules that shall govern the trial of the specified offences. The only departures from the ordinary criminal trial procedure in the State are the abolition of trial by jury or by assessors, and the removal of the preliminary inquiry before commitment in sessions cases. Even under the regular procedure, trial by jury is not mandatory unless the Government specifically orders it, as provided in sections 268 and 269(1). Assessors, when they are used, are not members of the court and their opinions do not bind the judge, who alone bears responsibility for the decision. Likewise, the commitment proceeding in a sessions case is not an essential element of a fair and impartial trial, although its omission may deprive an accused of certain advantages that would otherwise be available. Consequently, these procedural variations do not in themselves threaten the fairness or impartiality of the trial. Exercising the powers conferred by sections 9, 10 and 11, the Government issued notification No H/35-5-C dated 9 February 1950, directing that a Special Court be constituted for particular special areas and that it should try certain specified offences, including offences under sections 302, 307 and 392 read with section 34 of the Indian Penal Code as adapted for the State of Saurashtra, offences for which the appellant was convicted and sentenced. The appellant contends that section 11 and the aforesaid notification are discriminatory because offences alleged to have been committed by the appellant within the designated areas must be tried by a Special Judge under the special procedure, whereas an individual committing identical offences outside those areas would be tried by ordinary courts under the regular procedure. The appellant further argues that sections 9 and 11, by permitting the State Government to establish a Special Court and to direct it to try offences under a special procedure, effectively authorise the Government to amend section 5 of the Criminal Procedure Code as applied to the State, a power that the appellant asserts exceeds legislative competence and is therefore void.

The Court observed that the notification issued by the Government effectively authorised the executive to amend section five of the Criminal Procedure Code together with the Second Schedule, as adapted for the State of Saurashtra, which declares that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with in accordance with the provisions that follow. The Court held that delegating such power to the executive exceeded the competence of the legislature and was therefore void. Turning to the first issue, the Court noted that many of the considerations that had guided its earlier decision upholding the constitutionality of section five-one of the West Bengal Special Courts Act, which is worded identically to section eleven of the impugned Act, applied even more forcefully to the present case. The West Bengal case arose from a reference by that State Government of certain individual cases to a Special Court for trial, and the Court there expressed the view that it was erroneous to require that every classification be discoverable in each piece of legislation, for otherwise nothing would qualify as legislation. The Court explained that such an approach to classification merely obscured the real problems that required resolution. In the present matter, however, the State Government did not refer particular individual cases but rather offences of a certain type committed in specified areas, and therefore the allegation of discriminatory treatment could be addressed more readily by the reasoning set out in the West Bengal judgment. Moreover, the Court found that the procedural variations introduced by the impugned Ordinance were actually less disadvantageous to persons tried before the Special Court than the variations permitted under the West Bengal Act. Nevertheless, it was argued that any procedural variation that materially disadvantaged such persons would amount to discrimination and would contravene article fourteen. The State, on the other hand, contended that in the realm of personal liberty the only constitutional safeguards were those enumerated in articles twenty to twenty-two, and that, following the decision in Gopalan’s case, any procedure prescribed by law satisfies the requirements of article twenty-one, the sole article at issue, so that the special procedure prescribed by the Ordinance could not be held unconstitutional. The State relied on a Full Bench decision of the Hyderabad High Court in Abdur Rahim and others v. Joseph A. Pinto and others as support for this view. The Court concluded, however, that neither of these extreme positions was correct. It emphasized that legislative differentiation is not automatically discriminatory. In fact, the term “discrimination” does not appear in article fourteen; the expression “discriminate against” occurs in articles fifteen-one and sixteen-two, meaning, according to the Oxford Dictionary, to make an adverse distinction with regard to or to distinguish unfavourably.

Discrimination, as used in this context, meant making an unfavorable distinction between one person and another. The Court explained that such adverse bias must be examined in light of the grounds listed in articles 15 and 16 of the Constitution. When a law is based on a bias that is founded on any of those constitutional grounds, the law could be declared void unless one of the exceptions provided in the respective provisions saved it. The Court then contrasted this analysis with the situation under article 14. For claims of equal protection under article 14, the presumption was that the State’s action was reasonable and justified. This presumption arose because the legislature necessarily enjoys a broad power to classify people in different ways so that it may implement its policies. The Court noted that the State’s authority to organise criminal trials by setting up separate courts with distinct procedures for different parts of its territory formed an essential component of its police power, referring to the authority of Missouri v. Lewis. Although such differing procedures might result in unequal treatment of the accused, the Court held that mere disparity was not enough to overturn the presumption of constitutionality. Only when the disparity exceeded what was necessary for the purpose—such as when it led to a denial of a fair and impartial trial—could it be characterised as discrimination. Consequently, the Court rejected the proposition that article 14 offered no additional protection of personal liberty beyond that provided by article 21. While recognising that article 14’s broad language is moderated by the practical need to respect the State’s extensive power to classify, the Court affirmed that article 14 continued to serve as an important safeguard against discriminatory procedural statutes.

The Court then turned to the facts presented in the affidavit submitted on behalf of the State. The affidavit, prepared by a responsible officer, set out statistical information showing a rising incidence of looting, robbery, dacoity, nose-cutting and murder committed by roaming gangs of dacoits in particular districts of the State. These statistics supported the State’s claim that the security of the State and public peace had been severely threatened, and that it was no longer feasible to try the offences efficiently in separate courts scattered across the territory. The affidavit further identified the areas mentioned in the notification as the principal zones where the dacoits operated. Because the impugned Ordinance had been enacted to address the accelerating wave of these region-specific crimes, the Court found that the dual classification—based on the type of offence and the geographical territory—embodied in the Ordinance and the accompanying notification was reasonable and valid. The Court concluded that the degree of differential treatment introduced by the Ordinance did not exceed what the circumstances required, and therefore the classification did not amount to unconstitutional discrimination.

In the second issue, counsel for the appellant argued that the prevailing view in the case In re The Delhi Laws Act, 1912, supported his position. He sought to demonstrate this by assembling various passages of dicta that appeared in the multiple judgments that formed that decision. Although the judges who formed the majority did reach certain clear conclusions concerning the constitutionality of particular statutes, the rationale employed in each judgment differed, and no single principle articulated by the majority could be identified as applicable to other matters. The Court had previously expressed the opinion that legislatures in this country possess full authority to delegate their law-making power to subordinate bodies of their choosing, and that such delegation, even if politically unwise or undesirable, remains constitutionally valid. Accordingly, the present contention was rejected. The rejection implied that the Special Judge possessed the jurisdiction to try the appellant together with the co-accused. Because the majority of the judges concurred in dismissing the preliminary objection, the appeal was allowed to proceed to a substantive hearing on its merits.

This appeal was filed by Kathi Raning Rawat, who had been convicted under sections 302, 307 and 392 read with section 34 of the Indian Penal Code, and sentenced to death as well as to seven years of rigorous imprisonment. The trial had been conducted before a Special Court that had been created under the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 (Ordinance No. LXVI of 1949), an ordinance issued by the Rajpramukh of Saurashtra on 2 November 1949. The conviction and the sentence were subsequently affirmed by the High Court of the State, and the appellant then filed the present petition before the Supreme Court challenging that decision. The central question presented for determination was whether the ordinance relied upon was void under article 13(1) of the Constitution because it breached the equality guarantee contained in article 14. The factual backdrop showed that on 5 April 1948 the Rajpramukh of Saurashtra promulgated the Criminal Procedure Code, 1898 (Adaptation) Ordinance, 1948 (Ordinance No. XII of 1948), which extended the Criminal Procedure Code of the Dominion of India as it stood on 1 April 1948 to the State of Saurashtra, subject to certain modifications. In the same month, the Saurashtra State Public Safety Measures Ordinance (Ordinance No. IX of 1948) was also issued, providing among other measures for the detention of individuals whose conduct was deemed prejudicial to public safety, order and tranquility in the State. Later, on 5 November 1949, the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, the instrument presently under scrutiny, was promulgated. This amendment sought to modify the earlier ordinance by inserting additional provisions, which may be summarised as follows

Section 9 of the 1949 Ordinance authorised the State Government, by publishing a notice in the Official Gazette, to establish Special Courts with criminal jurisdiction for any area that the Government specified in that notice. Section 11 stipulated that a Special Judge could be directed by the State Government, through a general or special written order, to try particular offences, classes of offences, cases or groups of cases. Sections 12 through 18 set out the procedure that a Special Judge must follow when conducting a trial. The distinctive features of that procedure were as follows: first, the Special Judge was permitted to take cognizance of an offence without the accused being formally committed to the Judge’s court for trial; second, the trial was to be conducted without a jury and without the assistance of assessors; third, the Judge was required, as a rule, to record only a memorandum summarising the substance of each witness’s evidence; and fourth, a person convicted by the Special Judge had to lodge an appeal to the High Court within fifteen days of the date on which the sentence was imposed. In addition, the Ordinance expressly excluded the application of sections 491 and 526 of the Code of Criminal Procedure to any person or case that fell within the jurisdiction of a Special Judge. The High Court, however, retained the power to call for the records of any proceeding before a Special Judge and could exercise any appellate-court powers conferred by sections 423, 426, 427 and 428 of the Code of Criminal Procedure.

From the foregoing description it was clear that the procedural regime created by the Ordinance differed from the procedure laid down in the ordinary Criminal Procedure Code in several respects. Where a case could be tried by a Court of Session, the Ordinance eliminated the need for a commitment proceeding, allowing the Special Judge to take cognizance directly. The trial was to be conducted without a jury or assessors. The court was to record merely a memorandum of the substantive evidence of each witness rather than a full verbatim transcript. The time allowed for appealing to the High Court was reduced to fifteen days, and no court possessed the jurisdiction to transfer a case from a Special Judge or to make an order under section 491 of the Criminal Procedure Code. Pursuant to sections 9, 10 and 11 of the Ordinance, the State Government issued Notification No. H/35-5-C on 9 February 1951. That notification directed the constitution of a Special Court for the areas listed in a schedule annexed to the notice and empowered the court to try offences specified in the schedule, namely offences under sections 183, 189, 190, 212, 216, 224, 302, 304, 307, 323-335, 341-344, 379-382, 384-389 and 392-402 of the Indian Penal Code, 1860, as adapted and applied to the State of Saurashtra, as well as most of the offences created under the 1948 Ordinance.

During the hearing, an affidavit was submitted by the Assistant Secretary of the Home Department of the Saurashtra Government. The affidavit declared that, following the integration of various Kathiawar States at the beginning of 1948, a succession of crimes against public peace had taken place. In response to these disturbances, the Government had promulgated Ordinance No. IX of 1948, which, among other provisions, authorized the detention of individuals whose conduct was deemed prejudicial to public safety and the maintenance of public order within the State. Despite the enactment of this Ordinance, the incidence of crime continued to rise, and the State experienced numerous cases of dacoity, murder, nose-cutting, ear-cutting and similar violent offences. Certain notorious gangs were identified as responsible for many of these acts. Consequently, the Government issued Ordinance No. LXVI of 1949 to amend the earlier Ordinance and to establish Special Courts for the speedy trial of cases arising from the activities of dacoits and other violent criminals.

The principal argument advanced on behalf of the appellant was that the 1949 Ordinance violated article 14 of the Constitution because it prescribed a procedure that was different from and less advantageous to the accused than the ordinary procedure prescribed by the Criminal Procedure Code. The appellant contended that this disparity created an unjust discrimination between persons tried under the special procedure and those tried under the regular procedure. To support this contention, reliance was placed on the Supreme Court’s decision in The Slate of West Bengal v. Anwar Ali Sarkar and Gajen Mali (Cases Nos. 297 and 298 of 1951) (1), wherein certain provisions of the West Bengal Special Courts Act, 1949, were held unconstitutional on grounds similar to those raised by the appellant. A comparison of the provisions of the present Ordinance with those of the West Bengal Act revealed that several of the objectionable features identified in the West Bengal legislation were absent from the Ordinance. Nonetheless, the Court expressed the view that this difference alone did not provide sufficient justification for upholding the Ordinance. The Court noted, however, a crucial distinction between the West Bengal Act and the present Ordinance that, in its opinion, could justify the latter. The Court explained that a distinction should be drawn between “discrimination without reason” and “discrimination with reason.” The doctrine of classification rests on this distinction and on the well-known principle that the circumstances governing one set of persons or objects may differ from those governing another set, so that unequal treatment does not arise when persons are subject to different conditions and circumstances. The principal objection to the West Bengal Act was that it permitted discrimination without any rational basis.

The Court observed that the West Bengal Act was criticized because it allowed discrimination without any rational basis. The Act established a procedure that was materially different from and less favorable to the accused than the ordinary criminal procedure. It also gave the State Government unfettered authority to apply that procedure in any case, any class of cases, any offence, or any class of offences. The Court noted that the Act contained no principle to regulate the use of those discriminatory provisions nor to link them to any concrete and reasonable objective. Consequently, a reader of the Act could not determine whether the special treatment of certain offences was appropriate to achieve a particular goal. The mere reference to “speedier trial” as the purpose of the Act failed to cure the defect because that phrase by itself did not provide a rational basis for classification. The expression merely described the desired result of applying the special procedure and offered no guidance as to which cases warranted a faster trial. In contrast, the Court found that the present Ordinance contained a guiding principle within its text that limited the special procedure to a specific category of offences. That principle created a nexus between offences of that particular category and the object for which the Ordinance was promulgated, thereby avoiding the charge of unjustified discrimination. The Ordinance was said to amend an earlier Ordinance whose purpose was to ensure public safety, maintenance of public order, and preservation of peace and tranquillity in the State. It was undisputed that the preamble of the original Ordinance also applied to the amending Ordinance, so the object of the new Ordinance remained the same as that of the original. Once this was understood, the Court saw that the Ordinance itself directed the State Government to apply the special procedure only to those cases or offences that bore a rational relationship to the main objective of maintaining public safety, order and tranquillity. The clear statement of a definite objective thus provided the State Government with a tangible and rational basis for classifying offences and for selecting only those that affect public safety, order and peace.

The Court observed that, according to section 11 of the Ordinance, the State Government was required to choose only those offences, classes of offences, or categories of cases that were intended to be tried by the special court under the special procedure, and that those chosen offences had to be ones calculated to affect public safety, the maintenance of public order, or similar concerns. Section 9 further limited the application of the special procedure to areas that were disturbed or where public-safety measures were deemed necessary. The Court noted that this interpretation of the Ordinance was confirmed by a Notification issued by the State Government on 9 February, which was issued pursuant to the Ordinance. The Notification listed forty-nine offences from the Indian Penal Code that had been adapted for application in the State, together with a few other offences punishable under the Ordinance itself. The Court pointed out that each of those listed offences directly impacted the maintenance of public order and the preservation of peace and tranquility. In addition, the Notification identified specific areas within the State over which only the special court was authorized to exercise jurisdiction. The Court held that there was no dispute that, when the State Legislature determined that lawlessness and crime were widespread and that a direct threat to peace and tranquility existed in particular areas, it was competent to treat the offences affecting public order in those areas as a distinct class and to provide that such offences be tried as swiftly as possible by means of a special procedure designed for that purpose.

The Court further explained that this purpose constituted the plain rationale of the Ordinance and that it would be unreasonable to claim that a legislature could never prescribe a special procedure for trying a particular class of offences, even where abnormal conditions prevailed, without violating article 14 of the Constitution. The Court was satisfied that the present case was distinguishable from the earlier West Bengal decision, but it also emphasized that legislatures should resort to such special legislation only in exceptionally unusual circumstances. The Court observed that the present appeal did not raise the issue of referring individual cases to the special court, and therefore it refrained from commenting on that point. The Court addressed additional arguments raised on behalf of the appellant, namely that the Ordinance involved excessive delegation of legislative authority and that the Rajpramukh had exceeded his powers in amending the Criminal Procedure Code. The Court found both contentions to be without merit and rejected them. Consequently, the Court concluded that the Saurashtra State Public Safety Measures (Third Amendment) Ordinance was not unconstitutional and it overruled the objection concerning the special court’s jurisdiction to try the appellant.

Mahajan J. identified the main question for determination as whether section 11 of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance (No LXVI), 1949, which became effective on 2 November 1949, contravenes article 14 of the Constitution because it fails to specify any basis for the distinct treatment that the Ordinance provides for trying certain criminals in particular cases and for particular offences. Section 11 of the Ordinance reads: “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.” The provision is word-for-word identical to section 5(1) of the West Bengal Special Courts Act (Act X of 1950), which states: “A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct.” The Court had previously examined the constitutionality of section 5(1) of the Bengal Act in The State of West Bengal v. Anwar Ali Sarkar etc.(1) and had held that section to be violative of article 14. In that earlier decision the Court expressed the view that even if the statutory language did not appear discriminatory on its face, the effect and operation of the provision rendered it discriminatory because it bestowed upon the executive an unfettered and unregulated discretion, which made the provision unconstitutional.

Mahajan J. observed that section 11 of the Saurashtra Ordinance, like the earlier West Bengal provision, offers no reasonable classification or basis either with respect to the offences or the cases that may be assigned to the special tribunal. The section does not provide any criteria for grouping persons, cases or offences that would enable a clear distinction between those that fall within the special court’s jurisdiction and those that remain subject to the ordinary procedure under the Criminal Procedure Code. Consequently, the State Government could arbitrarily select one individual in circumstances identical to another, refer that individual’s case to the special tribunal, and leave the other individual’s case to be tried under the regular criminal procedure. The Government could also decide that a simple hurt offence, punishable by two years of rigorous imprisonment, should be tried by the special judge, while a more serious offence of the same nature, punishable under section 308 of the Indian Penal Code with a heavier sentence, would be excluded from the special court’s jurisdiction. The notification issued in the present case exemplifies this possibility: the offence of simple hurt is listed for trial before the Special Judge, whereas the more grave offence under section 308 is expressly omitted. Mahajan J. held that the mischief created by section 11 is precisely that it permits such arbitrary discrimination. Because offences falling within sections 302 to 308 of the Indian Penal Code share common characteristics, the appellant was entitled to complain of hostile and unjustified discrimination arising from the operation of section 11 of the Ordinance.

In this case the Court expressed the view that section eleven of the Saurashtra Public Safety Measures Ordinance was unconstitutional and that the conviction secured against the appellant by the special judge under that provision was therefore invalid and had to be set aside. Consequently the Court ordered that the appellant be retried in accordance with the procedure laid down in the Code of Criminal Procedure. The argument presented by counsel for the State, which sought to distinguish the provisions of the Ordinance from those of the West Bengal Special Courts Act, was rejected as untenable. Reference was made to section nine of the Ordinance, which reads: “The Government of the United State of Saurashtra may by notification in the official gazette constitute Special Courts of criminal jurisdiction for such area as may be specified in the notification.” The Court observed that this wording is identical to the language of section three of the West Bengal Special Courts Act and that it merely empowers the State Government to create special courts for any part of the State or for the whole State, just as the West Bengal provision does. The Court further held that this empowerment does not in any manner limit or curtail the authority that section eleven confers on the State Government. The Court also considered the preamble of the Ordinance, which states: “An Ordinance to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra.” The Court concluded that these introductory words cannot be read as restricting the clear and unambiguous language of section eleven, which authorises the State Government to refer any case or to commit persons guilty of any offence to the special judge for trial under the procedure prescribed by the Ordinance.

The appellant, together with two co-accused, had been tried before the Special Judge of the Court of Criminal Jurisdiction of Saurashtra State on charges of murder, attempted murder and robbery, which were framed under sections three hundred two, three hundred seven and three hundred ninety-two of the Indian Penal Code read with section thirty-four. By a judgment dated twentieth December, nineteen hundred and fifty, the Special Judge found the appellant guilty of all three charges, sentenced him to death for the murder conviction under section three hundred two, and imposed seven years of rigorous imprisonment for each of the convictions under sections three hundred seven and three hundred ninety-two. The High Court of Saurashtra affirmed both the convictions and the sentences on appeal. The appellant subsequently obtained a certificate from the High Court under articles one hundred thirty-two paragraph one and one hundred thirty-four paragraph one sub-c of the Constitution, permitting him to approach this Court. At the time of this hearing the appeal had not yet been considered on its substantive merits; it had been listed for argument on preliminary points of law raised by counsel for the appellant, who challenged the legality of the entire trial on the ground that section eleven of the Saurashtra Public Safety Measures Ordinance No. XLVI of nineteen forty-nine, enacted by the Rajpramukh of Saurashtra, and the corresponding notification issuing the special court, were void and inoperative.

In this appeal the appellant asserted that both the provision of section 11 of the Saurashtra Public Safety Measures Ordinance No XLVI of 1949 and the notification issued by the State Government on 9-11 February 1951, which established the Special Court and conducted the trial, were void and inoperative. The principal ground advanced was that those measures conflicted with the guarantee of equality before the law contained in article 14 of the Constitution. A further ground alleged that section 11 was illegal because it amounted to an improper delegation of essential legislative powers from the State Legislature to the Executive.

With respect to the first ground, counsel for the appellant placed great reliance upon the majority decision of this Court in two analogous appeals from the Calcutta High Court, identified as cases Nos. 297 and 298 of 1951, reported in [1952] S.C.R. 284. In those cases a similar question of validity arose concerning section 5(1) of the West Bengal Special Courts Act, 1950. It was on the basis of the pronouncement in the Calcutta appeals that the present matter was ordered to be heard on these preliminary points of law. It is not contested that the language of section 11 of the Saurashtra Ordinance is identical to that of section 5(1) of the West Bengal Act. The wording of the provision is as follows: “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.”

The West Bengal legislation contains an additional provision in clause (2) of section 5, which stipulates that no direction contemplated by clause (1) may be given with respect to cases that were pending before ordinary criminal courts at the date the Act came into force. No comparable exception appears in the Saurashtra Ordinance. In the Calcutta cases the notification issued under section 5(1) of the West Bengal Act identified particular individual cases involving specified persons and directed that those cases be tried by the Special Court. The Calcutta High Court held that the portion of section 5(1) empowering the State Government to direct any case to a Special Court was void because it violated article 14, and that view was affirmed on appeal by a majority of this Court.

Regarding the remaining portion of section 5(1), which authorises the State Government to direct “offences, classes of offences…or classes of cases” for trial before Special Courts, the majority of the judges of the Calcutta High Court were of the opinion that such language was not offensive to article 14 of the Constitution. This distinction formed a key part of the reasoning that the Court considered in evaluating the validity of the corresponding provision in the Saurashtra Ordinance.

In the present case, the notification that had been issued by the Saurashtra State Government on 9/11th February, 1951, dealt not with any single criminal proceeding but with a broader institutional arrangement. The first step taken by the notification was to create a Special Court covering the geographical areas that were enumerated in the accompanying schedule. The second step was to appoint a judge who would preside over the newly constituted Special Court. The third and final step was to set out a schedule of offences, each identified by the appropriate sections of the Indian Penal Code, which the Special Judge was directed to try. The Court considered whether the view expressed by the Chief Justice of the Calcutta High Court and the majority of the other judges of that Court – that such a notification and the portion of section 11 of the Saurashtra Ordinance under which it was made could not be attacked as violating article 14 of the Constitution – was correct. This issue had arisen before the Court in the appeals that were filed against the Calcutta decision, where the same point was examined in relation to the analogous provision, section 5(1), of the West Bengal Special Courts Act. While a majority of the present Court agreed to dismiss those appeals, there was no majority opinion reached on the substantive question of whether the notification conflicted with the equal protection clause of article 14.

The author of the present judgment recalled that, in the Calcutta appeals, he had been skeptical of the conclusion reached by the Chief Justice and the majority of his colleagues. His doubt stemmed from the observation that the judges of the Calcutta High Court had held that “the necessity of speedier trial” mentioned in the pre-amble was too vague and uncertain to serve as a reliable basis for classifying offences. Consequently, the power given by section 5(1) of the Special Courts Act to the State Government to direct any class of offences or cases to a Special Court appeared to be an unguided authority, and the propriety of the classification implied in such a direction could not be measured against any definite legislative policy or standard. Counsel for the State of Saurashtra, identified as Mr. Sen, argued that the Saurashtra Ordinance was situated on a different footing, referring to the pre-amble of the original ordinance and to the circumstances that had prompted the enactment of the present one. Because the question remained unsettled by an earlier decision, the author considered it necessary to examine it carefully. At the outset, it was noted that the Criminal Procedure Code of India did not apply to the State of Saurashtra. After the State’s accession to the Indian Union, the Rajpramukh promulgated an ordinance on 5th April, 1948, which introduced the provisions of the Criminal Procedure Code (Act V of 1898) into Saurashtra with certain modifications. In addition, a Public Safety Measures Ordinance was passed on 2nd April, 1948, setting out further regulatory frameworks.

According to the judgment, the ordinance that had been enacted functioned in a manner similar to other public-safety measures that had been introduced in various states, and it contained provisions for preventive detention, the imposition of collective fines, the control of essential supplies and related matters. On 11 November 1949, the ordinance in question was passed as an amendment to the Public Safety Measures Ordinance and, among other things, it created provisions for the establishment of special courts. Section 9 of the ordinance authorised the State Government to constitute special courts of criminal jurisdiction for any areas that might be specified in a notification. Section 10 dealt with the appointment of special judges who would preside over those courts, while Section 11 stipulated that a special judge was required to try “such offences or classes of offences … or classes of cases” that the Government of the United State of Saurashtra might direct by a general or special written order. The procedure that the special judges were to follow was set out in Sections 12 to 18 of the ordinance. In effect, the special court was given the status of a sessions court, but the usual committal proceedings were removed and trial by jury or with assessors was also eliminated. The special judge was required merely to prepare a memorandum of the evidence and was permitted to refuse to summon any witness if, after examining the accused, he was satisfied that the witness’s evidence would not be material. Section 16(1) limited the period within which an accused convicted by a special judge had to lodge an appeal before the High Court, and clause (3) of the same section provided that no court could obtain jurisdiction to transfer any case from a special judge or to make any order under Section 491 of the Criminal Procedure Code. The judgment observed that the ordinance did not contain several of the most objectionable features of the West Bengal Act; it retained the High Court’s power of revision, it did not expose an accused to conviction for a major offence when charged only with a minor one, and it lacked any provision that would allow a trial to proceed in the absence of the accused. Nevertheless, the court noted that although the ordinance compared favourably with the West Bengal Act in certain respects, the procedure it prescribed for special judges differed in material ways from the normal procedure laid down in the Criminal Procedure Code. Because those differences curtailed the rights of accused persons who were to be tried by the special court and deprived them of certain benefits to which they would otherwise have been entitled under the general law, the ordinance prima facie created a classification that amounted to discrimination. The judgment therefore framed the issue of whether such discrimination conflicted with article 14 of the Constitution, referring to the equal-protection clause and indicating that the scope of that guarantee had already been explained in earlier decisions of the court.

In this case, the Court noted that the principles governing the equal protection clause of the Constitution have already been explained in numerous earlier decisions and therefore did not require repetition. It observed that a legislature, when confronted with the intricate problems that arise from the limitless variety of human relationships, must necessarily resort to some form of selection or classification of the persons upon whom the legislation will operate. The Court explained that such classification inevitably creates a distinction between those who belong to the identified class and those who do not, but that distinction alone does not render the legislation hostile to the equal protection clause. Equality prescribed by the Constitution, the Court held, is not violated when a statute applies uniformly to every person who falls within the defined group and when the classification is neither arbitrary nor capricious but bears a reasonable relationship to the legislative objective. The Court further emphasized that the legislature enjoys a very wide latitude in devising classifications, and that judicial interference becomes necessary only when there is a clear abuse of power and the distinctions drawn bear no rational connection to the purpose of the law. Turning to the provisions of the Saurashtra Ordinance, the Court examined Section 11, which, for the purpose of the present matter, provides that a Special Court shall try such offences or classes of offences, or classes of cases, as the State Government may direct. The Court observed that this clause clearly envisages a classification of offences and cases, yet the statute itself does not set out any specific categories; instead, it merely confers the authority on the State Government to determine which classes shall be tried by the special tribunal. The Court then posed the immediate question of whether, on its face, such a provision is discriminatory because it places the discretion of selecting or classifying offences in the hands of an administrative body or officials. A further issue identified by the Court concerned the test, if any, by which the propriety of the administrative action should be assessed, and the remedy that would be available to a person aggrieved by an arbitrary or capricious classification. The Court referred to a doctrine propounded by American courts, noting that the equal protection clause can be invoked not only when the statute expressly contains discriminatory language, but also when the discrimination results from an improper or prejudiced implementation of the law (1). However, the Court cautioned that a statute is not automatically condemned as discriminatory merely because it entrusts the power to classify to certain officers or administrative bodies, provided that the delegation serves as an effective means of carrying out the legislative policy. The Court illustrated this principle by mentioning various regulations in the United States where state police powers permit discretion to be exercised by public officers or boards in matters such as granting licences for taverns, selling spirituous liquors (2), milk (3), cigarettes (4), or appointing river pilots and other specially trained personnel (5). Although acknowledging that those examples differ in nature from the present case, the Court concluded that the underlying principle remains the same: the problem is fundamentally how to choose the method by which legislative policy is implemented.

In this context, the legislature may act to protect public health, safety, welfare or to regulate trades, business and occupations that could become unsafe or dangerous if left unchecked. Accordingly, statutes often place discretion in public officers or boards to grant or refuse licences for activities such as keeping taverns or selling spirituous liquors (2), and also for other commodities such as milk (3) or cigarettes (4). In a similar manner, regulations exist concerning the appointment of river pilots (5) and other specially trained individuals required for particularly difficult tasks; in those cases the statute normally sets out conditions that a candidate must satisfy to be considered qualified. Nevertheless, even after meeting those conditions, the appointment board retains a discretion to decide, and the suitability of a candidate for a particular post is ultimately submitted to the judgment of the relevant officer or board. Although these examples differ in detail from the matter presently before the Court, the underlying principle remains the same. The essential issue before the Court is to determine the method by which the legislative policy should be implemented in practice. As Frankfurter J. observed in the cited authorities, laws are not abstract propositions but rather expressions of policy designed to address specific difficulties and to achieve particular ends through specific remedies. The Court referenced several cases, including Crowley v. Uhristensen, 137 U.S. 86 (2); People of the State of New York v. Job E., Van De Carr, 199 U.S. 552 (3); Gundling v. Chicago, 177 U.S. 183 (4); Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552 (5); and Tinger v. Texas (1), where the same observation was made. In the Court’s view, when the legislative policy is clear and definite, and the statute delegates to an administrative body the authority to apply the law selectively to particular classes or groups, the statute itself cannot be labeled discriminatory. As one quotation states, “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 circumstances, the power given to the executive body carries with it a duty to classify the subject matter of the legislation in line with the objective set out in the statute. The discretion granted to official agencies is therefore not unfettered; it must be exercised in conformity with the legislative policy that the direction seeks to effectuate, and the propriety of any classification must be measured against that objective. If an administrative body classifies persons or things on a basis that bears no rational relation to the legislative objective, that classification may be invalidated as a violation of the equal protection clause. Conversely, if the statute itself does …

In this case the Court observed that when a statute failed to disclose a definite policy or objective and instead conferred authority on another body to make selections at its pleasure, the statute was held, on its face, to be discriminatory irrespective of the manner in which it was applied. The Court referred to the principle underlying the United States Supreme Court decision in Yick Wo v. Hopkins (118 U. S. 356). In that case the ordinance of the City and County of San Francisco was examined, and the Court found that the object of the ordinance was not to regulate the laundry business in the locality in the interests of the general public. The laundry business was harmless in itself and useful to the community. No policy or objective was indicated or declared by the legislature, but an uncontrolled discretion was given to the Board of Supervisors, which could refuse a licence at its pleasure to anyone carrying on a laundry business in wooden buildings. The classification contemplated by the statute was therefore an arbitrary classification dependent on the caprice of the Board, and it was condemned as discriminatory on its face; its application against Chinese laundry owners merely confirmed the discriminatory character and the hostile intention of the legislation. The Court further noted that the West Bengal case already decided fell within the same principle, because the desirability of a “speedier trial,” hinted at in the pre-amble to the West Bengal Act, was too vague, elusive and uncertain to amount to a definite policy or objective on the basis of which any proper classification could be made. The statute left the matter to the unfettered discretion of the State Government, which could classify offences or cases in any manner it liked without regard to any objective, and consequently the statute was open to challenge for arbitrary discrimination.

The Court then turned to the question of whether the Saurashtra Ordinance presented any distinguishing features or occupied the same position as the West Bengal Act. Section 11 of the Saurashtra Ordinance was worded in exactly the same manner as section 5(1) of the West Bengal Special Courts Act, and that part of the Ordinance, which was under consideration, authorised the State Government to direct any classes of offences or cases to be tried by the special tribunal. Accordingly the State Government had to make a classification of cases or offences before issuing its directions to the Special Court. The Court stressed that if such classification depended entirely upon the pleasure of the State Government, without any guiding principle, it could not be a proper classification, because a reasonable relation must exist between the classification and the objective that the legislation sought to achieve.

In this case, the Court observed that a proper classification of offences must be based on a reasonable connection between the classification and the purpose of the legislation. The Court explained that a classification cannot be arbitrary; there must be a sensible relationship between the way cases are grouped and the objective that the law seeks to achieve. Conversely, when the legislature sets a clear objective and assigns discretion to the State Government as a means of attaining that objective, the law itself cannot be said to be discriminatory, although the State Government’s actions may be condemned if they violate the equal protection clause by making an arbitrary selection. The Court then turned to the historical background of the legislation. The earlier ordinance, which the present amendment supplemented, had been enacted by the Rajpramukh of Saurashtra on 2 April 1948. That ordinance was described as an instrument to provide for the security of the State, the maintenance of public order, and the supply of essential services to the community of Saurashtra. Its preamble set out this objective in the same terms that appear in the later ordinance. The Court noted that the integration of several Kathiawar states into the State of Saurashtra had been completed in February 1948. According to an affidavit filed by an officer of the Home Government of Saurashtra, soon after this integration an alarming level of lawlessness emerged in some districts of the new State. Gangs of dacoits were operating in various places, and their numbers were gradually increasing. Because ordinary law was considered inadequate to deal with the criminal activities of these gangs, the Rajpramukh promulgated the Saurashtra Public Safety Measures Ordinance on 2 April 1948. That ordinance primarily provided for preventive detention and the imposition of collective fines, and the State Government hoped that these extraordinary powers would enable it to restore order. However, the affidavit presented a long list of offences committed by the dacoits during 1948 and 1949, including murder, nose-cutting, looting and dacoity, showing that the situation remained severe. In view of this disturbing condition, a new ordinance was passed on 11 November 1949. The new ordinance made provision for the establishment of Special Courts to try offenders under a special procedure. Acting under section 11 of that ordinance, the State Government issued a notification on 9 February 1950, which constituted a Special Court for the areas specified in the schedule. The affidavit again showed that all those areas lay within the districts of Gohilwad, Madhya Saurashtra and Sorath, where the tribe of marauders was principally concentrated. The Court pointed out that the purpose of passing the new ordinance was identical to that of the earlier one, and that the preamble of the later ordinance, read together with the surrounding circumstances, revealed a definite legislative policy that the State sought to implement through the various provisions of the enactment.

In this case, the Court observed that the policy intended to be carried out by the various provisions of the enactment was centered on establishing Special Courts to address an abnormal situation. The Court held that it was not unreasonable for the State Government to have the power to choose which offences would be tried in those Special Courts. After considering the principles already discussed, the Court stated that it could not conclude that section 11 of the Ordinance, which permits the State Government to designate classes of offences or specific cases for trial before a Special Court, violates the equal protection clause of the Constitution. The Court added that only if the notification issued by the State Government were based on an arbitrary or unreasonable basis could it be challenged as unconstitutional. Consequently, the Court examined the terms of the notification and the list of offences it prescribed. The notification, as previously described, created a Special Court for the areas listed in the Schedule and appointed Mr P P Anand as the Special Judge to preside over that Court. The notification then set out the offences that the Special Court could try, referring to particular sections of the Indian Penal Code. The Court noted that counsel for the petitioner, Mr Chibber, contested the classification of offences in the list. He argued that while the list included offences of a certain character, it omitted other offences of a similar character for which no distinction in treatment could be justified. He pointed out that the list contained section 183 of the Indian Penal Code but excluded sections 184, 186 and 188, which dealt with comparable conduct. He also observed that section 307 was included while section 308 was left out. Counsel relied on the American Supreme Court decision in Skinner v Oklahoma (1). In that decision, the Court examined the constitutionality of an Oklahoma statute that provided for sterilisation of habitual criminals convicted twice of a felony involving moral turpitude. The statute applied to larceny but not to embezzlement, and the Court held that it violated the equal protection clause. The Court agreed that it is a reasonable principle that when two offences are intrinsically the same and carry the same punishment, a person charged with one offence should not be treated differently from a person charged with the other. This principle reflects the core of the equal protection clause, which requires that persons in similar circumstances receive alike treatment in both privileges and liabilities. The Court also recalled the observation of Justice Douglas in the Skinner case that legislatures need not provide abstract symmetry when defining the scope of legislation.

In the judgment the Court observed that symmetry could be used to distinguish classes and types of problems according to practical needs and experience, and that an overly rigid insistence on scientific classification was neither practical nor desirable. The Court noted that the notification referred to section 183 of the Indian Penal Code while omitting section 184, and that it could not accept that the two provisions were identical in nature. Section 183 concerned resistance to the taking of property by a lawful public servant, whereas section 184 dealt with obstruction of the sale of property offered for sale by such a servant. Section 186, on the other hand, did not involve the taking of property at all; it concerned obstruction of a public servant in the discharge of his duties. The Court further expressed uncertainty as to whether the State Government was obliged to include section 308 of the Indian Penal Code merely because it had listed section 307. While it was true that the list specified culpable homicide as well as attempt to murder, the Court held that an attempt to commit culpable homicide was a less serious offence and that the State Government might, in view of the facts before it, consider that such an attempt did not require a special procedural classification.

The Court stated that a detailed examination of each offence specified in the list, with regard to its nature and punishment, was unnecessary for the purposes of this case. The appellant before the Court was charged with murder punishable under section 302 of the Indian Penal Code, and the Court found that no other provision in the Code could be placed on an identical footing with murder. Even culpable homicide not amounting to murder, although mentioned in the list, was considered a less heinous offence. Consequently, the Court concluded that the appellant could not claim any grievance arising from an unjust or arbitrary classification because he was charged with murder and dacoity, and no offences of a comparable nature were excluded from the list. The Court observed that the notification contained a considerable number of offences that could be grouped under various heads, and the mere omission of certain offences that might have been listed alongside similar ones did not render the entire list defective. The Court further explained that an allegation of inequality based on such omission could be raised only by a person who was directed to be tried under the special procedure for a particular offence; a person charged with a similar offence that was not mentioned in the list would still retain the advantages of the ordinary procedure. Accordingly, the Court held that the first point raised on behalf of the appellant could not succeed.

When an offence is not listed in the special schedule, another individual still retains the benefits of the ordinary criminal procedure; consequently, the Court concluded that the first preliminary objection presented on behalf of the appellant could not succeed. The second preliminary objection, raised by counsel for the appellant, concerned whether the Rajpramukh had improperly delegated legislative authority to the State Government. Counsel acknowledged that the facts of the present case were identical to those decided in King Emperor v. Benoarilal Sarma, a matter that had been adjudicated by the Privy Council. The Court observed that the wording of section 5 of the Special Criminal Courts Ordinance (No II of 1942), which was examined in that earlier case, closely mirrors the wording of section 11 of the Saurashtra Ordinance. The Privy Council had held that such provision did not constitute a delegation of legislative power in the strict sense, but rather represented a common legislative scheme whereby a local administrative authority determines the necessity of applying a statutory provision in a particular locality. In other words, the provision was treated as conditional legislation falling within the doctrine articulated in Queen v. Burah. Subsequent decisions of this Court have repeatedly accepted and applied the Judicial Committee’s pronouncement in the Benoarilal case, and the Court found no basis to revisit the correctness of that precedent at this stage. Accordingly, the Court concluded that both preliminary objections must be dismissed and that the appeal should proceed to be heard on its substantive merits. The appellant had been tried before a Special Court created under the Saurashtra Public Safety Measures (Third Amendment) Ordinance No LXVI of 1949 for offences alleged to have been committed under sections 302, 307 and 392 of the Indian Penal Code. On 20 December 1950, the Special Court found the appellant guilty of all three charges, sentenced him to death for the murder under section 302 and imposed rigorous imprisonment of seven years for each of the offences under sections 307 and 392, with the imprisonment terms to run concurrently. The appellant appealed to the High Court of Saurashtra, which on 28 February 1951 dismissed the appeal and upheld both the conviction and the sentences imposed by the Special Court. Nevertheless, on 21 March 1951, the High Court issued a certificate permitting the appellant to bring the matter before this Court under article 132 and article 134(1)(c) of the Constitution, and the present appeal was consequently filed. The appellant’s counsel advanced a preliminary challenge asserting that the Special Court lacked jurisdiction to try the case, contending that the entire trial and conviction were null and void from the outset and therefore should be set aside.

The Court noted that, in order to address the preliminary objection, it was necessary to examine the relevant provisions of the Ordinance and the circumstances that led to the creation of the Special Court. In early 1948, the various princely states of Kathiawar were merged to form the present State of Saurashtra. At about the same time, a wave of law-breaking activity by dacoits spread across Kathiawar, especially in the regions now identified as the districts of Gohilwad and Madhya Saurashtra and on the outskirts of Sorath, which had previously been part of Junagadh State. The dacoits’ conduct grew in intensity and ferocity, to the extent that the security of the State and the maintenance of public peace were seriously threatened. To curb these unlawful acts, the Rajpramukh of Saurashtra issued Ordinance No. IX of 1948 on 2 April 1948. The preamble of that Ordinance declared that it was “expedient to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra.” The Ordinance empowered the State Government to issue orders for the detention or restriction of movement of individuals and to impose collective fines. A few days later, on 5 April 1948, the Rajpramukh promulgated Ordinance No. XII of 1948, which extended to Saurashtra the provisions of the Code of Criminal Procedure (Act V of 1898), subject to certain adaptations and modifications listed in the Schedule of the Ordinance. An affidavit filed by Ramnikrai Bhagwandas Vesavada, Assistant Secretary in the Home Department of the Government of Saurashtra, indicated that the earlier Ordinance proved inadequate to confront the dacoits’ activities. Incidents of looting, dacoity, robbery, nose-cutting and murder continued unabated and, in fact, increased in number, frequency and severity. Consequently, it became impossible to prosecute these offences promptly in ordinary courts dispersed across different locations. In view of the grave situation prevailing in the affected districts, the State of Saurashtra deemed it necessary to establish Special Courts and to devise a special trial procedure so that cases involving specified offences could be disposed of expeditiously. Accordingly, on 2 November 1949, the Rajpramukh issued Ordinance No. LXVI of 1949, titled “The Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949,” which amended the earlier Public Safety Measures Ordinance (No. IX of 1948). Section 4 of Ordinance No. LXVI inserted several new sections into Ordinance No. IX; of particular relevance were sections 9, 10 and 11. Section 9 authorized the Government of the United State of Saurashtra, by notification in the Official Gazette, to constitute Special Courts of Criminal Jurisdiction for any area specified therein. Section 10 empowered the Government to appoint a Special Judge to preside over a Special Court, provided the appointee had served as a Sessions Judge for at least two years under the Code of Criminal Procedure, 1898, as applied in Saurashtra. Section 11 stipulated that a Special Judge could try any offences, classes of offences or cases directed by the Government through a general or special written order. Pursuant to these amended provisions, the State of Saurashtra issued a notification, the material part of which read: “No. H/35-5-C—In exercise of the powers conferred by sections 9, 10 and 11 of the Saurashtra State Public Safety Measures Ordinance, 1948 (Ordinance No. IX of 1948), the Government is pleased to direct that (i) a Special Court of Criminal Jurisdiction (hereinafter referred to as the said Court) shall be constituted for the…”.

The ordinance empowered the Government of the United State of Saurashtra to appoint a Special Judge to preside over any Special Court created under section 9. For a person to be eligible for appointment as a Special Judge, the ordinance required that the individual must have served as a Sessions Judge for a continuous period of at least two years, and that such service must have been under the Code of Criminal Procedure, 1898, as it applied within the United State of Saurashtra. Once appointed, a Special Judge was authorized to try any offence, any class of offences, any case or any class of cases that the Government, by a written general or special order, directed the judge to try. Thus the jurisdiction of a Special Judge was not limited by a fixed schedule of offences but was instead defined by the written directives issued by the State Government under the authority granted by sections 9, 10 and 11 of the ordinance.

In accordance with the powers set out in the amended ordinance, the State of Saurashtra issued a notification identified as No. H/35-5-C. The notification proclaimed that, exercising the authority conferred by sections 9, 10 and 11 of the Saurashtra State Public Safety Measures Ordinance, 1948, the Government was establishing a Special Court of criminal jurisdiction for the areas listed in the annexed schedule, with its headquarters to be located in Rajkot. The notification further appointed Mr P.P. Anand as the Special Judge who would preside over the newly constituted Court. It specified that the Special Judge was empowered to try two distinct categories of offences: first, offences enumerated 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, as adapted and applied to the United State of Saurashtra; and second, all offences created under the ordinance itself, except for any offence punishable under sub-section (6) of section 2 of the ordinance insofar as that sub-section relates to the contravention of an order made under clause (a) of subsection (1) of the same section. The appellant was subsequently charged with offences that fell within the ambit of the notification and was tried before the Special Court, resulting in the judgment that had been previously described. On his behalf, a preliminary objection was raised challenging the validity of section 11 of the ordinance on two grounds: first, that the provision violated article 14 of the Constitution by offending the principle of equality; and second, that it amounted to an unlawful delegation of legislative power to the State Government. Counsel for the appellant supported the first ground of challenge by relying on the Supreme Court’s decision in Case No. 297 of 1951, The State of West Bengal v. Anwar Ali Sarkar. That earlier case examined the validity of a trial conducted by a Special Court established under the West Bengal Special Courts Act, 1950 (West Bengal Act X of 1950). The preamble to the West Bengal Act declared it “expedient to provide for the speedier trial of certain offences.” The Court’s discussion in that precedent referred to sections 3, 4 and 5(1) of the West Bengal Special Courts Act, which were analogous to the provisions now under consideration.

The Court observed that the West Bengal Special Courts Act of 1950 incorporated, to a large extent and almost word for word, the provisions contained in sections nine, ten and eleven of the Saurashtra Ordinance of 1948 as later amended. However, the notification issued by the State of West Bengal under that Act differed from the notification issued by the State of Saurashtra because the West Bengal notification specifically directed certain individual “cases” to be tried by the Special Court created under the West Bengal Special Courts Act. The Court noted that this notification had clearly been issued under the portion of section 5(1) of the West Bengal Special Courts Act that empowered the State Government to nominate particular “cases” for trial by the Special Court. The majority of the Court had previously held that, insofar as section 5(1) of the West Bengal Special Courts Act authorized the State to direct “cases” to the Special Court, the resulting notification violated the equality guarantee contained in article 14 of the Constitution and therefore was void under article 13. By contrast, the Court pointed out that the Saurashtra notification had evidently been issued under the part of section 11 that allowed the State Government to direct “offences”, “classes of offences” or “classes of cases” to be tried by the Special Court. The issue before the Court on the present appeal was whether the portion of section 11 relied upon in the Saurashtra notification contravened the equal-protection clause of the Constitution. Counsel argued that the view expressed by the majority of this Court in the West Bengal case on the comparable provision of section 5(1) of the West Bengal Special Courts Act was unnecessary for the present appeal and should be reconsidered. After citing earlier decisions in Chiranjit Lal Choudhury v. Union of India and Others (1) and The State of Bombay v. F.N. Balsara (2), the Court restated the meaning, scope and effect of article 14 as formerly articulated in the West Bengal judgment, and affirmed full adherence to that reasoning. The Court reiterated the settled principle that article 14 forbids legislation that creates arbitrary classes but does not prohibit reasonable classifications made for legislative purposes. For a classification to be permissible, the Court explained, two criteria must be satisfied: first, the classification must be based on an intelligible differentia that distinguishes those placed within the class from those excluded; second, the differentia must bear a rational relationship to the purpose that the statute seeks to achieve. In other words, a genuine nexus must exist between the basis of classification and the object of the legislation. The Court observed that section 11 of the Saurashtra Ordinance, like section 5(1) of the West Bengal Special Courts Act, identified four distinct categories – “offences”, “classes of offences”, “cases” and

The section of the Saurashtra Ordinance under discussion, specifically section 11, authorises the State Government to direct that any one or more of four distinct categories—“offences”, “classes of offences”, “cases” and “classes of cases”—be tried by the Special Court established by the Act. The terms “offences”, “classes of offences” and “classes of cases” plainly denote a process of grouping offences or cases for legislative purposes. The judgment cites earlier authorities, namely (1) [1950] S.C.R. 869 and (2) A.I.R. (1951) S.C. 318 at p. 326; [1951] S.C.R. 682, to support the view that these words do not refer to any particular offender or accused in any specific case. The emphasis is placed on the categories themselves rather than on individual persons. Classification of “offences” in the abstract does not target a particular individual, although once a classification is made it may affect any person who commits the offence so classified. In short, the language of the subsection is not intended to single out any person for hostile State action; it is meant solely to group “offences”, “classes of offences” and “classes of cases” in order to implement the legislative scheme described in the Ordinance’s preamble.

An argument was advanced, echoing the West Bengal case, that this portion of the provision gave the State Government an unfettered and un-guided power of classification that could be exercised capriciously, or “with an evil eye and an unequal hand”, thereby creating invidious discrimination between persons in identical or similar circumstances. The Court rejected that contention, relying on the reasoning adopted in the West Bengal decision, which it found equally, if not more, applicable to the Saurashtra Ordinance. The Court observed that the power conferred on the State Government is a duty to make a proper classification, which must satisfy two conditions: first, the classification must be based on an intelligible differentia that distinguishes the offences grouped together from those left out; second, that differentia must have a reasonable relation to the object of the Act as expressed in its preamble. A classification lacking a distinguishing basis or rational connection to the Act’s purpose would be wholly arbitrary and could be struck down, as suggested by the principles articulated in Jack Skinner v. Oklahoma. Conversely, as noted in the West Bengal case, it is easy to envisage situations where certain offences, because of their frequency or surrounding circumstances, legitimately warrant special treatment in order to curb their commission.

In this case, the Court observed that certain offences, when considered together with the surrounding circumstances, may justifiably require special treatment in order to prevent their continued commission. The Court noted that gruesome crimes such as murder, arson, looting and rape, when perpetrated on a large scale during communal riots in particular localities, are fundamentally different from isolated incidents of the same offences occurring in another district that is not affected by communal upheaval. The Court further observed that the existence of dacoit gangs and the accompanying large-scale crimes, as set out in the affidavit filed on behalf of the State, create a need for prompt and speedy trials in order to maintain public order, preserve peace and tranquillity, and protect the safety of the community. The Court asked whether those special circumstances do not impart a peculiar quality to the offences or classes of offences mentioned in the notification, thereby distinguishing them from stray cases of similar crimes, and whether it is reasonable and even necessary for the State, which possesses the power to classify offences, to place them in a separate group for prompt adjudication. The Court affirmed that the surrounding circumstances and the special features detailed in the affidavit provide a strong and reasonable basis for classification, because they clearly separate these offences from similar or identical offences committed elsewhere under ordinary conditions. The Court explained that this distinction has a reasonable relation to the object of the Act, namely, the maintenance of public order, the preservation of public safety, and the peace and tranquillity of the State. The Court concluded that such a classification would not violate the equal protection clause of the Constitution, since any person who commits the specified offence in the specified area under the specified circumstances would be treated alike and would be brought before a Special Court for trial under the special procedure. The Court further held that persons tried by a Special Court under the special procedure could not claim unequal treatment by pointing to other persons charged before an ordinary Court for similar offences allegedly committed in a different place and under different circumstances, because those other persons belong to a different category and are not their equals. In the Court’s judgment, this portion of the section, when properly construed and understood, does not grant an uncontrolled or unguided power to the State Government. On the contrary, the power is limited by the necessity of making a proper classification that must be guided by the preamble, meaning that the classification must have a rational relation to the object of the Act as recited in the preamble. Consequently, the Court found that the power is not arbitrary.

The Court explained that the authority to classify offences, classes of offences, or classes of cases for the purposes of the Ordinance rests with the State Government, since the State Government is better placed to evaluate the needs and exigencies of the State and because the Court will not lightly interfere with the State Government’s judgment. The Court warned, however, that if the State Government were to classify offences arbitrarily and without a reasonable basis connected to the object of the Act, such classification would constitute either an abuse of power when done intentionally or an excess of power even if undertaken in good faith. In either circumstance, the resulting discrimination would be subject to a constitutional challenge, and the Court would strike down not the substantive law itself but the abusive, misapplied, or unconstitutional administration of that law that creates or results in unconstitutional discrimination. In the present case, the Court found that the affidavit filed on behalf of the State set out facts that made it abundantly clear that conditions in certain parts of the State added a particularly sinister quality to specific offences committed in those areas, and that the State Government therefore legitimately grouped those offences together in the notification. The Court noted that the criticism concerning the inclusion of certain offences while excluding cognate offences had already been addressed by the learned brother Mukherjea, and the Court expressed that it had nothing further to add on that point. In the Court’s opinion, the reasons articulated in the earlier judgment concerning the West Bengal case and referred to above show that section 11 of the Saurashtra Ordinance, insofar as it empowers the State Government to direct offences, classes of offences, or classes of cases to be tried by the Special Court, does not offend the equal-protection clause of the Constitution, and consequently the notification issued under that provision cannot be declared invalid or ultra vires. Regarding the question of delegation of legislative power, the Court observed that the matter appears settled by the Privy Council decision in Benoarilal’s case (1), and that the section may be regarded as an instance of conditional legislation. Furthermore, the Court stated that, for the reasons set out in its judgment in the President’s Reference (2), there has been no illegal delegation of legislative power. On the basis of the foregoing reasons, the Court agreed that the preliminary point should be rejected and that the appeal should be heard on its merits. The judgment was delivered by Justice Chandrasekhara Aiyar J. The Court also observed that counsel for the respondent had endeavoured to distinguish this case from the earlier decision on the West Bengal Special Courts Act, 1950, The State of West Bengal v. Anwari Ali Sarkar and Gajan Mali (3), but the Court was of the view that such an attempt was unsuccessful. The Court further noted that Sections 9 and 11 of the Ordinance in question do not, by themselves, impose any classification, and that the preamble to the earlier Ordinance of 1948, which remains intact because the later enactment is only an amendment, continues to provide the foundational guidance for the classification scheme.

The Court noted that the proceedings were recorded as Cases Numbers 297 and 298 of 1951 and that the decisions were reported in the Supreme Court Reports at volume 747 for 1951 and at volume 284 for 1952. The ordinance that was under scrutiny was described merely as a measure intended to ensure public safety, the maintenance of public order, and the preservation of peace and tranquillity within the State of Saurashtra. The Court observed that such a purpose is a general object that every enlightened government or administrative system must keep in mind. Accordingly, every law that deals with the commission and punishment of offences is founded on the same need for public safety. The notification creating the Special Court expressly referred to “offences” rather than to “cases” or to “groups of cases,” but the Court found that this distinction did not create a rational classification. Offences that share the same characteristic features and are cognate in nature were treated differently: some were assigned to the Special Court while others were left for trial by the ordinary courts. The Court further held that, although the departures from the normal procedure prescribed in the Ordinance were fewer and less vital than those in the earlier Bengal case, the absence of a reasonable or rational classification remained a fatal defect. The Court emphasized that the denial of committal proceedings was of great consequence to the accused, because it stripped him of the clear advantage of being able to examine the prosecution’s evidence and to challenge it by cross-examination, a step that could potentially lead to his discharge at an early stage.

The Court rejected the respondent’s argument that no discrimination existed against the appellant when compared with other persons charged with the same offences. It pointed out that cognate offences had been left for trial by the ordinary courts, and that simply stating that other individuals such as B and C were placed in the same category did not answer the appellant’s claim of discriminatory legislation when persons D, E and F, who were liable for the same or similar offences, remained subject to the normal procedure in ordinary courts. The Court said that little importance could be attached to the affidavit of the Assistant Secretary to the Government; even if the facts concerning the frequency and location of particular offences were correct, the affidavit did not provide any ground for classification, nor did the impugned Ordinance or its notification contain such grounds. While acknowledging that the inclusion of classification criteria is not a strict legal requirement, the Court noted that prudence suggested their incorporation to avoid reliance on after-thought explanations. In the Court’s view, the decision in the West Bengal Special Courts Act case applied to the present matter and rendered section 11 of the Ordinance invalid. Consequently, the Court found it unnecessary to address the additional point raised by counsel for the appellants concerning the delegation of legislative powers.

The Court ordered a partial repeal of certain provisions of the Criminal Procedure Code, specifically sections five and twenty-eight together with the Schedule. This partial repeal was made because the earlier decision in King Emperor v. Benoari Lal Sarma and Others (1) appeared to be adverse to the appellant. As a result of this partial repeal, the Court set aside the convictions that had been recorded against the appellant and also annulled the sentences that had previously been imposed. The matter was therefore remitted for a fresh trial to be conducted under the ordinary procedural rules of criminal law.

Justice Boss, writing for the bench, expressed agreement with his colleagues, Justice Mahajan and Justice Chandrasekhar Aiyar, that the Saurashtra State Public Safety Measures (Third Amendment) Ordinance contravened the guarantee of equality enshrined in article fourteen of the Constitution. In reaching this conclusion, he referred to the reasoning he had articulated in his earlier judgment in The State of West Bengal v. Artwar Ali Sarkar (2). He indicated a preference not to base his present decision on the classification test employed in that earlier case. On the basis of the reasons already discussed, he held that the distinctions created by the Ordinance exceeded the legitimate limits permissible under the law. Although the number of points of differentiation in the present case was fewer than those identified in the earlier West Bengal case, Justice Boss observed that the remaining distinctions were, in his view, of a substantial nature and were sufficiently serious to invoke the equality provisions of article fourteen. Accordingly, he declared the Ordinance to be invalid and dismissed the preliminary objection that had been raised. The agent for the respondent was identified as P A Mehta.