Syed Qasim Razvi vs The State of Hyderabad and Others

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

Court: Supreme Court of India

Case Number: Petition No. 172 of 1952

Decision Date: 19 January 1953

Coram: B.K. Mukherjea, Ghulam Hasan, M. Patanjali Sastri, N. Chandrasekhara Aiyar, Vivian Bose

In this matter, the Supreme Court recorded that Syed Qasim Razvi filed a petition against the State of Hyderabad and other respondents. The judgment was delivered on 19 January 1953. The opinion was written by Justice B K Mukherjea, and the bench that decided the case consisted of Justices B K Mukherjea, Ghulam Hasan, M Patanjali Sastri, N Chandrasekhara Aiyar and Vivian Bose. The decision is reported in the All India Reporter at page 156 for the year 1953 and also in the Supreme Court Reporter at page 589 of the same year. The case has been cited in many law reports under references such as 1953 SC 287, 1953 SC 394, 1953 SC 404, 1954 SC 424, 1955 SC 13, 1955 SC 191, 1956 SC 60, 1956 SC 269, 1957 SC 397, 1957 SC 503, 1957 SC 877, 1957 SC 927, 1958 SC 86, 1958 SC 538, 1958 SC 578, 1959 SC 149, 1959 SC 609, 1961 SC 1245, 1961 SC 1457, 1962 SC 92, 1979 SC 478, 1980 SC 1382 and several others. The constitutional provisions that were material to the dispute were articles 13, 14 and 21 of the Constitution of India, 1950, and the Special Tribunal Regulation identified as V of 1358-F, Hyderabad.

The Court’s headnote explained that following the military administration of Hyderabad, the Military Governor issued a Special Tribunal Regulation on 30 October 1948, designated V of 1358 Fasli. This regulation established a Special Tribunal composed of three members appointed by the Governor. Under the regulation the Governor, by a general or special order, could direct that any offence or class of offences be tried before this Tribunal, and the procedural rules set out in the regulation differed from those contained in the Hyderabad Criminal Procedure Code. Notable distinctions included the Tribunal’s authority to take cognizance of offences without a prior committal order, the absence of any provision for trial by jury or by assessors, the requirement that proceedings be conducted in English, the limited duty to take only a memorandum of the evidence, and the lack of any mechanism for a fresh trial if the Tribunal’s personnel changed. The regulation also omitted provisions for transfer of cases, revision of decisions, or confirmation of sentences. On 6 October 1949 the cases against the petitioners—who faced charges of rioting, dacoity, arson and other offences—were ordered to be tried by the Special Tribunal. The Tribunal rendered convictions in September 1950, and the High Court affirmed some of those convictions on appeal in April 1951. The petitioners then appealed to the Supreme Court and, invoking article 32 of the Constitution, sought to have the High Court and Special Tribunal orders set aside. Their argument was that the Special Tribunal Regulation became void on 26 January 1950 because its provisions contravened articles 14 and 21, and consequently the continuation of the trial and the convictions after that date were unlawful.

The Court held that the Special Tribunal Regulation could not be declared void on 26 January 1950 merely because its provisions violated articles fourteen and twenty-one of the Constitution, which had come into force on that date. The majority opinion, delivered by the Chief Justice and two other judges, with two judges dissenting, stated that article thirteen of the Constitution does not operate retrospectively. Consequently, even though certain provisions of the impugned Regulation were inconsistent with article fourteen, the Regulation remained valid for all transactions that had occurred before the Constitution commenced, and it could be used to enforce rights and liabilities that had accrued prior to that date. On this basis, the order issued by the Military Governor that referred the cases to the Special Tribunal was not subject to challenge, and the Tribunal was deemed to have taken proper cognizance of the matters. All proceedings of the Tribunal that took place before the Constitution became effective were therefore considered lawful.

The Court further explained that where only part of a trial is affected by an unconstitutional provision, the court must first examine whether the discriminatory clause can be separated from the remainder of the law and whether a fair procedural equality can still be achieved without it. Secondly, the court must determine whether the actual procedure followed relied on the offending provision. A mere possibility or threat of unequal treatment is insufficient to invalidate the subsequent proceedings. Applying this test, the majority found that the accused enjoyed substantially the benefits of a normal trial, despite some deviations, and that the convictions could not be set aside solely because the Constitution had taken effect before the trial was completed. In the dissent, one judge argued that, under article thirteen (1), a trial may not lawfully continue after the Constitution if it is based on a law that contravenes fundamental rights, because the essential conclusion of a trial must not be reached on a basis that offends constitutional guarantees. The dissenting judge also noted that the validity of a law must be judged independently of the actions taken under it, and that the Special Tribunal Regulation gave the Military Governor unlimited discretion to refer cases to the Tribunal without any defined criteria.

The Court observed that the Regulation contained several provisions that were discriminatory. These included the lack of committal proceedings, the removal of the rights of revision, transfer and a fresh trial, and the authority granted to the Tribunal to use a summary procedure. In addition, the Regulation eliminated the use of Urdu, which was the official language of the Hyderabad courts, and denied the right to have sentences confirmed. Because these provisions could not be separated from the sixty-nine-one good portions of the Regulation, the entire Regulation was held to have become void on 26 January 1950. Consequently, any trial of the petitioners that took place after that date was conducted under a void law. The Court further noted that discrimination persisted in fact after 6 January, since the proceedings continued to be conducted in English even after that date. As a result, the convictions of the petitioners were declared illegal.

Judge Ghulam Hasan added that the discriminatory provisions of the Regulation continued to affect the petitioners after 26 January 1960, preventing them from seeking bail, transfer or revision. This was sufficient to find that the Regulation violated article 14 of the Constitution and was therefore void under article 13. The Court held that it was irrelevant whether the discriminatory provisions were actually applied to the petitioners’ cases after 26 January 1950, because those provisions could not be severed from the rest of the Regulation. Accordingly, the trial conducted under the Regulation was void under article 13 read with articles 14 and 21, rendering the petitioners’ convictions illegal. The Court referred to the decisions in Anwar Ali Sarkar v. State of West Bengal ([1952] S.C.R. 284) and Lachmandas Kewalram Ahuja v. State of Bombay ([1952] S.C.R. 710) for explanation and distinction.

The judgment was presented as an original jurisdiction matter concerning Petitions Nos. 172 and 368 of 1952 filed under article 32 of the Constitution, together with Cases Nos. 276, 277, 278, 279 and 280 of 1951, which were appeals under articles 132(1) and 134 of the Constitution from the judgment and order dated 13 April 1951 of the Hyderabad High Court in Criminal Appeals Nos. 1449 and 1453 of 1950. Counsel for the petitioners-appellants were the advocates representing the petitioners, while counsel for the respondent, the State of Hyderabad, was the Advocate-General of Hyderabad and his assistant. The judgment was delivered on 19 January 1953. Chief Justice Patanjali Sastri, together with Justices Mukherjea and Chandrasekhara Aiyar, sat as the main bench, while Justices Mukherjea, Vivian Bose and Ghulam Hasan delivered separate opinions. In his opinion, Justice Mukherjea described the appellant, Syed Qasim Razvi, as one of the accused in the Bibinagar dacoity case, which the prosecution said involved a serious raid by a party of armed Razakars on the village of Bibinagar, about twenty-one miles from Hyderabad, on the afternoon of 10 January 1948. The raid allegedly included robbery, looting, arson, assault and other violent acts. The First Information Report was lodged on the following day, but the police administration at the time was under the complete control of the Razakars.

In the circumstances described, the administration of the State of Hyderabad was under the complete control of the Razakars, and the authorities attempted to minimise the seriousness of the incident. Consequently, there was no proper police investigation, nor was there any serious effort to arrest the perpetrators or to bring them to trial. Nineteen months after the occurrence, on 28 August 1949, a charge-sheet was finally presented before Special Tribunal No 4 at Trimulgherry, Secunderabad, charging the appellant together with six other persons.

The Special Tribunal had been constituted pursuant to the Special Tribunal Regulation, Regulation V of 1358 F. Under section 2 of that Regulation, the tribunal consisted of three members who were appointed by the Military Governor. Section 3 authorised the Military Governor, by a general or special order, to direct that any offence or class of offences should be tried by such a tribunal, while section 4 laid down the procedure to be followed by the tribunal.

The case against the appellant and his co-accused was formally referred to the Special Tribunal by an order of the Military Governor dated 6 October 1949. Because the charge-sheet had already been submitted on an earlier date, a further order dated 8 October 1949 was issued to validate the presentation of that charge-sheet. The trial commenced before the Special Tribunal on 24 October 1949, when the Special Public Prosecutor opened the case on behalf of the prosecution.

The trial proceeded under the warrant procedure. The prosecution examined a total of forty witnesses, completing the examination-in-chief of all of them on 21 November 1949. At that stage the appellant chose to cross-examine only one witness, namely the fortieth and final witness, and he carried out that cross-examination on 22 November 1949.

Subsequently, on 29 November 1949, the accused was examined under section 273 of the Hyderabad Criminal Procedure Code, which corresponds to section 342 of the Indian Criminal Procedure Code. On 5 December 1949, the tribunal framed charges against him under sections 123, 124, 330 and 177 read with section 66 of the Hyderabad Penal Code.

The cross-examination of eighteen prosecution witnesses was completed before 26 January 1950, and the remaining witnesses were cross-examined after that date. The accused was examined again on 26 February 1950. By its judgment dated 11 September 1950, the Special Tribunal convicted the appellant on all of the aforementioned charges and sentenced him to rigorous imprisonment of two years under each of sections 123, 124 and 177 read with section 66, and to rigorous imprisonment of seven years under section 330, with all sentences directed to run concurrently.

The appellant appealed this decision to the High Court of Hyderabad.

By the judgment dated 13 April 1951, the High Court allowed the appeal only to the extent of acquitting the accused of the charge under section 123 of the Hyderabad Code, while it dismissed the remainder of the appeal and upheld both the conviction and the sentence that had been imposed by the Special Tribunal. On 6 August 1951, the High Court granted the accused leave to file an appeal before this Court under articles 132 and 134 of the Constitution, and consequently an appeal was lodged in pursuance of that certificate. Although the record of that appeal had not yet been printed, the appellant, in the meantime, moved this Court under article 32 of the Constitution, seeking a writ of certiorari to set aside the orders of the High Court as well as those of the Special Tribunal, and also requesting his release on the ground that the proceedings before the Special Tribunal became void after 26 January 1950 because they were inconsistent with articles 14 and 21 of the Constitution. The appellant argued that because the trial was legally defective after that date, the resulting conviction and sentence were likewise illegal and that he therefore should be freed from imprisonment. When the petition was listed for hearing, the learned Advocate-General for the State of Hyderabad raised the preliminary question of whether an article 32 petition was the appropriate remedy, given that a properly constituted High Court, which possessed jurisdiction to examine the Special Tribunal’s competence, had already considered the matter. The Court, without expressing any view on that preliminary objection, decided to entertain the arguments on the points raised, treating them as preliminary issues within the appeal itself, and noted that the further consideration of the appeal on its merits would depend on the decision reached in the present hearing. The appellant’s counsel, Mr Peerbhoy, contended that the procedure prescribed in the Special Tribunal Regulation for trial of offences differed materially from the ordinary law prevailing in Hyderabad, and that those differences curtailed the accused’s rights and denied him benefits to which he would have been entitled under the general law. He submitted that, on its face, the Special Tribunal procedure was discriminatory and could not be justified by any reasonable principle of classification, since the Regulation made no attempt to categorize offences by nature or by the location where they were committed. Moreover, the Regulation granted the Military Governor unchecked discretion to refer any case to the Special Tribunal without any guiding rule or principle, thereby rendering the entire procedure void according to the principles articulated by this Court.

In discussing the earlier decision of Anwar Ali Sarkar v. The State of West Bengal (1), the Court observed that the Constitution of India had not yet come into force when the trial in that case began, and that part of the trial had been completed before 26 January 1950. It was submitted that, because the procedural regime became void from the date the Constitution took effect, any conviction and sentence that resulted from the use of that void procedure could not be sustained. The learned counsel also relied upon the judgment in Lachmandas Kewalram Ahuja v. The State of Bombay (2), arguing that that authority directly addressed the point raised in the present matter. The Court recognised that the issues involved were of great importance and required a re-examination of some of its earlier pronouncements. The first issue for consideration was whether the procedure for trying criminal offences prescribed in the Special Tribunal Regulation was discriminatory in character and therefore violative of article 14 of the Constitution. If it were found that at least some of the provisions were discriminatory, the next question would be the legal position in a case where a substantial part of the trial had been conducted before the Constitution came into force, a portion that could not be challenged on the ground of discrimination because constitutional rights were not retrospective. Should the procedure adopted after 26 January 1950 also be discriminatory, the conviction of the accused could not stand. Conversely, if it were established that after the Constitution’s commencement there was no occasion to apply any discriminatory provisions and that, in fact, the procedure actually followed was substantially the same as that applicable under ordinary law, the Court would have to decide whether the entire trial was thereby vitiated and whether the resulting conviction and sentence must be set aside.

The Court then examined the specific provisions of the Special Tribunal Regulation. It noted that the preamble to the Regulation did not articulate the object of the enactment or the legislative policy underlying it. The Regulation conferred an unfettered discretion on the Military Governor, allowing him to refer any offence or class of offences to the Special Tribunal at his own will, without any expressed objective or guiding principle in the statute. It was common knowledge that this Regulation had been promulgated immediately after the termination of police action in Hyderabad, a period when the State was in a highly alarming and unsettled condition. The Court acknowledged that there was undoubtedly ample justification for introducing a special measure of this sort under those circumstances.

The Court considered whether any clause of the Regulation might be inconsistent with the fundamental rights guaranteed by the Constitution and therefore unenforceable after the Constitution became operative. It observed that the Regulation was unquestionably designed to expedite criminal trials by establishing special tribunals that would assume full responsibility for the cases assigned to them, while the ordinary courts would continue to perform their regular duties. Under section 6 of the Regulation, a Special Tribunal was endowed with all the powers that a court of session possesses under the Hyderabad Criminal Procedure Code. Section 4(1) authorized the tribunal to take cognizance of offences without the accused having to be committed to it for trial, and subsection (7) of the same section required the tribunal to follow the summary-trial procedure prescribed for magistrates, although it could, when deemed appropriate, apply the warrant procedure instead. The tribunal also had the discretion to order that its proceedings be conducted in the English language. Regarding evidence, the tribunal was obliged to record evidence in writing; it needed merely to ensure that a memorandum summarising the substance of each witness’s testimony was prepared in English, but it retained the authority to direct that the entire evidence be fully recorded if it considered such a step necessary. The Regulation further provided that the tribunal could not be compelled to adjourn a trial for any reason, that no fresh trial would be held if there were changes in its personnel, that it could try an accused in his absence where the absence was deliberately caused by the accused to obstruct justice, and that it could, at its discretion, exclude the public from any proceeding. Section 7 empowered the tribunal to impose any sentence authorized by law, and it stipulated that an appeal against the tribunal’s orders could be filed with the High Court in the same manner as appeals from orders of a Sessions Court under the Hyderabad Criminal Procedure Code. The Regulation removed altogether the powers of revision and transfer, as well as the provisions relating to the confirmation of sentences. In short, these were the procedural features governing trials before the Special Tribunal. The Court noted that at the time there was no system of jury trial in the State of Hyderabad; while the city of Hyderabad allowed trials with the assistance of assessors, such provision did not extend to areas outside the city. Consequently, under the ordinary procedural regime, a trial could not presently be conducted with assessors, and the appellant could not claim inequality on that ground. The Court also recognized that the committal proceedings had been abolished, and it recorded that the learned Advocate-General for the State of Hyderabad had pointed out that the preliminary enquiry normally required before committal was not

Under the Hyderabad Criminal Procedure Code the preliminary enquiry before committal is not compulsory; consequently, a Magistrate may, in accordance with section 267-A of that Code, commit an accused to trial before the Sessions Court even without recording any evidence, or after recording only a portion of the evidence, provided the Magistrate is satisfied that sufficient grounds exist for such committal. The Court observed that the removal of the committal proceeding therefore does not, by itself, represent a substantial departure from the usual criminal procedure.

The learned counsel for the petitioner emphasized the Regulation provision that permits the Special Tribunal to order that the proceedings before it be conducted in the English language. The Court held that this requirement cannot be described as discriminatory because the Hyderabad Code does not designate any specific language as the language of the court. Although ordinary court proceedings in Hyderabad are generally conducted in Urdu, Urdu is not the spoken language of the majority of the population of the Hyderabad State. The Court noted that where an accused is not familiar with English and where adequate facilities for interpreting the proceedings into a language he understands are lacking, the accused may be prejudiced. Such prejudice could be raised as a ground of appeal against a conviction. Nevertheless, the Court concluded that the Regulation’s allowance for the Tribunal to conduct proceedings in English, if it so chooses, does not in itself violate the equal-protection clause of the Constitution.

The Court further explained that the authority to grant adjournments rests, even under the ordinary law, on the exercise of sound discretion by the court and is therefore a matter of limited consequence. Under the ordinary law, a court may also exclude members of the public or particular persons from the courtroom when it deems appropriate, as authorized by section 283 of the Hyderabad Code. Regarding the right to a de novo trial when there is a change in the presiding magistrate, the Court referred to section 350 of the Indian Criminal Procedure Code, which provides that an accused who has been heard in part before one magistrate may demand, before the second magistrate commences proceedings, that witnesses already examined be re-examined and reheard. The Hyderabad Code contains a corresponding provision, section 281, which similarly permits the accused to demand re-examination of witnesses; however, the magistrate may refuse such a demand if he considers it proper. The Court noted that a refusal to allow re-examination may constitute a ground for the High Court to order a retrial. Thus, the Special Regulation departs from ordinary procedure only to this limited extent. Finally, the Court observed that the continuation of a trial in the absence of the accused, when the Court is satisfied that the accused’s own actions have caused the absence in order to obstruct the course of justice, is another distinctive feature of the procedure before the Special Tribunal.

In this matter, the Court examined two significant departures from ordinary criminal procedure that are contained in sub-sections (2) and (7) of section 4 of the Special Regulation. Sub-section (2) empowers the Special Tribunal to dispense with the full, verbatim recording of each witness’s testimony and instead permits a memorandum that captures the substance of each deposition to serve as the record of evidence. However, a proviso labeled sub-section (2)(a) clarifies that this allowance does not prevent the Tribunal, in any particular trial, from ordering that the evidence be taken down at length if it deems such a full record necessary. Sub-section (7) further provides that, unless the Regulation itself makes a different provision, the Tribunal must conduct the trial as a summary trial, but even in that context the Tribunal retains the discretion to adopt the warrant procedure, provided that the reasons for such a decision are recorded in writing. The Court noted that the mandatory application of a summary-trial procedure and the permission to record evidence only in a condensed manner may be prejudicial to the accused, because such treatment can deny the accused benefits that are normally available to persons tried under the regular procedural framework. Nevertheless, the Special Regulation does afford the Tribunal the option to use the warrant procedure in cases where it considers this necessary, and it also allows the Tribunal to order that evidence be taken down in full. In the present case, the parties acknowledged that the evidence was indeed recorded in full and that the warrant procedure, rather than the summary-trial procedure, was applied.

The learned counsel for the appellant contended that a law which permits the summary-trial procedure or the abbreviated recording of evidence to be applied at the Tribunal’s discretion, without specifying the categories of cases to which such exceptional measures should be limited, is prima facie discriminatory and contravenes article 14 of the Constitution. He argued that this objection is independent of whether the provisions were actually invoked in the case at hand. The Court observed that when a statute enacted after the Constitution’s commencement contains such provisions, the validity of proceedings that occurred before 26 January 1950 must be presumed, but the question of which procedural regime was employed after that date may be material to deciding whether the trial was invalid on the ground of equal-protection violation. The Court indicated that this issue would be examined more fully in due course. The appellant also maintained that replacing the sessions-procedure with the warrant procedure creates a substantial difference that harms the accused. The Court could not accept this submission, holding that, apart from the committal proceeding—which is not mandatory under Hyderabad law—the accused does not find himself in a materially worse position merely because the warrant procedure was followed instead of the sessions procedure.

In the matter before the Court, the record shows that the prosecution examined all of its witnesses before the charge was formally framed, and the accused was afforded an opportunity to cross-examine those witnesses at that stage. The accused exercised that opportunity by cross-examining only one of the prosecution witnesses before the charge was framed, and subsequently, after the charge had been framed, he cross-examined all of the prosecution witnesses. The Court’s attention was drawn to section 267-A (2)(b) of the Hyderabad Criminal Procedure Code, which provides for a recross-examination by the accused in a sessions case. According to that provision, in a sessions trial the prosecution first puts its witnesses to examination-in-chief, and as soon as the primary examination of each witness is completed the accused may cross-examine that witness. After the prosecution has closed its case and before the accused calls his defence witnesses, the accused may, if he wishes, recross-examine any of the prosecution witnesses, but such recross-examination is confined to matters that were not addressed in the earlier cross-examination. Neither party clarified whether this right to recross-examine is available only when the committing magistrate does not examine any witness before issuing the commitment order, or whether it also applies when the prosecution witnesses are examined and cross-examined at the committal stage. The Court does not accept the contention advanced by counsel that, during the sessions trial itself, the accused enjoys three distinct rights of cross-examination, as alleged. The accused may cross-examine the prosecution witnesses as they are examined, and he has a second, limited right of cross-examination after the prosecution’s case ends and before he produces his own witnesses; this latter right is narrow, being restricted to issues omitted in the first cross-examination.

The warrant procedure that was followed in the present case also gave the accused two opportunities to cross-examine: one before the charge was framed and another after the charge was framed. In the Court’s view, this does not constitute a substantial procedural difference that would prejudice the accused. Counsel further argued that the appeal provision contained in the Regulation deprived the accused of a second appeal that is permitted under the Hyderabad Code. That argument is based on a misunderstanding. Section 355 of the Hyderabad Criminal Procedure Code provides for a second appeal in criminal matters, and the reference to an appeal to the High Court from the order of a Sessions Judge includes orders made by the Sessions Judge either in his original jurisdiction or on appeal from a District Magistrate or an Assistant Sessions Judge. However, in the present case the original trial was conducted by the Special Tribunal, which had been invested with the powers of a sessions court, and consequently only a single appeal to the High Court was available.

In this case the Special Tribunal had been given the authority that normally belongs to a Sessions Court, and consequently only a single appeal was available to the High Court. It was argued that if the trial had been conducted by a District Magistrate, the accused would have been entitled to a first appeal to the Sessions Judge and a second appeal to the High Court under the Hyderabad law. The court found that this argument was based merely on speculation and could not be sustained. One of the charges framed against the accused involved dacoity under section 330 of the Hyderabad Penal Code. A conviction under that provision authorized the court to impose a term of rigorous imprisonment of up to ten years. Therefore, unless the District Magistrate believed that the offence warranted a punishment of no more than four years of rigorous imprisonment, he was compelled to refer the matter to a Sessions Court for trial. The court held that no grievance could be reasonably founded on the fact that the trial was not conducted before a Magistrate. The court also noted two further departures in the Special Regulation. First, the regulation omitted the provisions dealing with revision and transfer. Second, it omitted the clause that required certain sentences to be confirmed by a higher authority. Under the Hyderabad Code, the High Court must confirm death sentences, sentences of transportation for life, and imprisonments exceeding ten years; death sentences must further be confirmed by the Nizam. These omissions created procedural differences that were prima facie prejudicial to the accused.

The court then turned to the constitutional issue. Article 13(1) of the Constitution provides that any law in force in India before the Constitution came into effect, to the extent that it is inconsistent with the fundamental rights guaranteed in Part III, is void. Counsel for the accused contended that even if some provisions relating to trial by a Special Tribunal were not unconstitutional, the presence of other provisions that were undeniably discriminatory rendered the entire law void for violating the equal protection clause. He argued that the way the law was applied in a particular case was irrelevant because the law itself was invalid. To support this position, counsel relied upon the judgment of the majority of this court in State of West Bengal v. Anwar Ali Sarkar, asserting that the same principle should apply. The court, however, observed that the factual and legal context of the present case differed materially from that precedent. In the West Bengal case the statute was enacted after the Constitution came into force and failed to specify the categories of offences or the criteria for directing cases to a Special Court, rendering the provision facially discriminatory. In contrast, the regulation under review had been in existence long before the Constitution and therefore required a different analysis.

In the earlier decision, the majority of the Court held that section 5(1) of the West Bengal Special Courts Act was beyond the Constitution because it permitted the State Government to direct any case to be tried by a Special Court. The Court declared that clause invalid since the Act, which was enacted after the Constitution had come into force, failed to specify the kinds of cases or offences for which such directions could be given, and it did not set out any criteria or basis for making the classification. Because that part of section 5(1) was discriminatory on its face, the Court said that it was unnecessary to examine how the provision might have been applied in any particular case. In the present matter, the challenged Regulation had been in operation long before the Constitution was adopted. Section 3 of the Regulation, which corresponds to section 6(1) of the West Bengal Special Courts Act, could be in conflict with article 14 of the Constitution; however, as the Court previously observed in Keshavan Madhava Menon’s case (1), article 13(1) does not eradicate the entire operation of a law that is inconsistent with the Constitution, nor does it delete it from the statute book, because such an approach would give the law a retrospective effect that it does not possess. Rather, the Court explained, a law of that sort remains valid for transactions that occurred before the Constitution and for the enforcement of rights and liabilities that accrued before its commencement. Applying that principle, the order issued by the Military Governor that referred the present case to the Special Tribunal could not be set aside, and the Special Tribunal was deemed to have taken proper cognizance of the case; consequently, its proceedings up to the moment the Constitution came into force were to be treated as valid. The Court also quoted the observation of Justice Das in Lachmandas Kewalram Akuja v. State of Bombay (2), stating that because the Act had been entirely valid before the Constitution, any part of the proceeding before the Special Judge that was conducted under the special procedure up to that date could not be questioned. The remaining issue, therefore, was how to determine the validity of the proceedings that continued after the Constitution became operative. It was not contested that, under article 13(1), the provisions of the Special Tribunal Regulation that conflicted with article 14 became void at the moment the Constitution commenced. Nevertheless, article 13(1) does not render the whole Regulation void; it only invalidates those provisions that are inconsistent with the fundamental rights guaranteed by Part III, and the mere continuation of the trial after 26 January 1950 under the same Regulation does not, by itself, make the subsequent proceedings invalid.

In this case the Court observed that the mere fact that a trial continued after the Constitution came into force did not by itself make the subsequent proceedings invalid. The position that the accused could maintain was that the portion of the trial that remained after that date must not depart in any material respect from the ordinary procedural standards, otherwise there would be a denial of the equal protection of laws contemplated by article 14 of the Constitution. To decide whether the accused had been deprived of that protection, the Court explained that it first had to examine whether, after removing the discriminatory provisions contained in the Special Tribunal Regulation, it was still possible to afford the accused substantially the same benefits of a trial that would be available under ordinary law. If that possibility existed, the Court then had to determine whether the trial in the present case actually proceeded on that basis. Counsel for the petitioner argued that once it is held that the Special Tribunal Regulation contains provisions that offend the equal-protection clause, any proceeding conducted under that Regulation after 26 January 1950 must be regarded as wholly invalid under article 13(1) of the Constitution. According to that argument, it would be irrelevant to inquire whether the trial could have continued without the offending provisions or whether, in fact, those provisions were ever applied. The counsel further contended that the very prospect of unequal application of the law, or the threat to equality, rendered the Regulation invalid once the Constitution became operative, and therefore the actual prejudice suffered by the accused was not a matter for consideration. In support of this line of reasoning the counsel relied heavily on the decision of this Court in Lachmandas Kewalram Ahuja v. The State of Bombay (1). The Court expressed that it was not persuaded by that reasoning. In Lachmandas’s case (1) the trial had been conducted before a Special Tribunal created under section 10 of the Bombay Public Safety Measures Act, 1947, and according to the procedure laid down in that Act. That procedure had been held to be discriminatory in material respects, and although the part of the trial conducted before 26 January 1950 could not be challenged, the continued use of the discriminatory procedure after that date was declared illegal, leading to the setting aside of the conviction and the ordering of a new trial (1) [1952] S.C.R. 710. The Court noted that in Lachmandas’s case the question now before it – whether, after discarding the discriminatory provisions, the trial could still be carried on and the accused could obtain substantially the benefits of a normal trial – was neither raised nor considered. Instead, it was assumed throughout that the trial could not proceed without the discriminatory procedure, and because that procedure became void on the Constitution’s commencement, the jurisdiction of the Special Judge was deemed to have effectively ceased. The majority judgment delivered by Das J. in Lachmandas’s case (2) expressly reflected that assumption.

The Court noted that, as previously observed, the Special Judge’s jurisdiction effectively ceased because the Judge was bound to follow a special procedure that had become void. Consequently, the Judge could not continue to act as a Judge of a Special Court created under the impugned Act. The Court stated that it was not necessary to examine whether that assumption was correct. It further observed that neither side’s counsel had raised this issue before the Court, and therefore the Court had not addressed it. Because the matter was never argued, the decision in Lachmandas’s case could not be cited as authority to contradict the view expressed by this Court.

In cases of the present nature, where a part of the trial is not open to challenge and the validity of the remaining part depends on whether the accused has been denied equal protection in procedural matters, the Court explained that two questions must be answered. First, the Court must determine whether the discriminatory or unequal statutory provisions can be separated from the rest of the law and, if so, whether an adequate measure of procedural equality can still be guaranteed to the accused without those provisions. Second, the Court must examine whether the procedure actually followed in the trial was based on the discriminatory provisions. The Court emphasized that a mere threat or possibility of unequal treatment is insufficient; only an actual act of discrimination permits a complaint. The Court also clarified that the inability to give the accused a normal trial at a later stage may arise either because the discriminatory provisions are inseparable from the remainder of the Act, leaving the court no option but to continue with the discriminatory process, or because an earlier step—though not invalid at the time—precludes the adoption of a different procedure later. For example, if the normal procedure requires a trial by jury or with assessors and none was used at the outset, it cannot be introduced later. Likewise, once a summary procedure has been adopted, the court cannot switch to another procedure at a subsequent stage; in such circumstances the entire trial must be held invalid. The Court pointed out that the Lachmandas Kewalram Ahuja v. State of Bombay case proceeded on the assumption that, after 26 January 1950, the Special Court could not avoid the discriminatory procedure, an assumption that had not been investigated and formed the basis of that decision.

In this matter the Court continued its analysis. One possible reason that the earlier assumption was not contested was that the normal trial in the comparable case was expected to be conducted with assessors. Because no assessor-led trial had been held at the outset, the Court reasoned that it would have been impossible to introduce assessors at a later stage. The Court then turned to examine the facts of the present case, applying the principles that had been set out earlier in the judgment. It is appropriate to note that, after counsel for both parties had concluded their oral arguments on points of law, the Court provided the appellant an opportunity to submit material that would demonstrate the extent to which he claimed to have been discriminated against and prejudiced by the trial that took place after the Constitution came into force. The appellant responded by filing a lengthy affidavit in which he detailed his grievances in an elaborate fashion, and the Court thereafter accorded the parties an additional hearing to consider those submissions.

The Court reiterated that no objection could be raised to the Special Tribunal having taken cognizance of the matter pursuant to an order of the Military Governor, since those events occurred well before the Constitution became operative. It further held that the mere creation of a Special Court could not, by itself, be described as an inequality before the law. In addition, the case before the Tribunal was a substantial one, and the trial was expected to occupy a considerable length of time before reaching conclusion. Consequently, directing the matter to an ordinary court would have effectively stalled the disposition of all other pending cases for an indefinite period. The Court observed that there was nothing inherently unreasonable in the establishment of a Special Court, particularly because Section 13 of the Hyderabad Criminal Procedure Code expressly authorises the Government to vest judicial powers in any government servant for a specified locality or for particular cases, designating such an officer as a special judge.

Regarding the procedural rules applicable to the Special Tribunal, the Court noted that the Regulation clearly prescribed a summary trial procedure as would be followed by a magistrate. Had the Tribunal adhered to that summary procedure, the Court would have been compelled to declare the entire trial invalid, since although the summary procedure could not have been challenged as unlawful before the Constitution’s commencement, it could not have been altered to a different procedure after 26 January 1950. Such a change would have rendered the whole process invalid for contravening the equal-protection clause. Instead, the Tribunal elected to apply the warrant procedure, a course of action that the Regulation itself authorised. Moreover, the Court pointed out that, under the Hyderabad Code, a committal proceeding is not mandatory, and therefore the distinction between a warrant procedure and a sessions procedure is not materially significant. The Regulation also permitted the recording of evidence either in a summary memorandum or in full; although the summary memorandum provision might appear discriminatory, the Regulation expressly allowed the Tribunal to direct a full-scale recording of evidence, which it indeed did in the present case.

The tribunal was authorized by the Regulation to order that evidence be recorded in full, and it actually gave that direction in the case before it. The Court observed that, had the tribunal chosen the alternative of recording evidence only in a summary form, it would have been impossible after the Constitution came into force to provide the accused with a trial having the substance of an ordinary proceeding. The use of the English language during the trial was held not to be discriminatory, and the appellant could not sustain any grievance on that ground. No complaint was recorded that the Special Tribunal had refused any adjournment prayed for by the appellant, and because the composition of the tribunal remained unchanged throughout the trial, there was no basis for a new trial on the ground of de novo proceedings. The Court also noted that there was no occasion on which the trial was held in the absence of the accused. The appellant, however, claimed in his affidavit that during the second local inspection he and his counsel were not present and that he only submitted a written note indicating certain places and matters for the tribunal’s information. In response, the State’s affidavit stated that the appellant chose not to appear and that he himself provided the note containing everything he wished to state. The Court found that, irrespective of the actual facts, this issue did not relate to the provision of the Regulation that permits a tribunal to continue a trial in the accused’s absence. Under the Regulation, a trial may proceed in the accused’s absence only when the tribunal is satisfied that the absence has been caused by the accused himself in order to obstruct the course of justice. It was therefore clear that the tribunal’s decision to inspect the place of occurrence while the accused was absent was not made under that specific provision. Moreover, the Regulation contains no clause whatsoever concerning local inspections.

The authority for conducting a local inspection is found in section 528 of the Hyderabad Code, which corresponds to section 539A of the Indian Code. The Court pointed out that the Hyderabad Code does not require any notice to be given to the parties before a local inspection is held, although such notice is required under Indian law. While it may be said that it is highly desirable for a court to make a local inspection in the presence of both parties, any failure to do so would be a matter that could be raised on the merits of the appeal. The Court emphasized that such a procedural irregularity does not engage any provision of the Regulation and therefore does not raise a question of conflict with the equal-protection clause. Consequently, the omission of notice or the presence of parties at the inspection does not affect the validity of the trial under the Regulation.

The Court observed that the provisions in the Regulation concerning revision and transfer might appear to be discriminatory, yet it found that the appellant’s complaint on this ground was largely imaginary rather than substantive. The Court explained that where a Special Court has been validly constituted to try a specific case, the ordinary practice does not permit that case to be transferred to another court, and the lack of a transfer right is an inherent feature of a Special Court’s establishment. Under the Regulation, however, the Military Governor possesses complete authority to transfer matters, and he may exercise this power without any statutory restriction or limitation, a provision that the Regulation itself intended to address any exceptional situations that could arise. Regarding the right of revision, the Court noted that only a single revision application had been filed by the appellant before 26 January 1950, alleging that the Special Court lacked jurisdiction and that the trial suffered irregularity because of a mis-joinder of charges. That application was dismissed on 27 February 1950, and the dismissal was not based on a claim that the Regulation barred revision, but rather on the view that interference at that stage was improper. The appellant had raised all of his questions in the appeal against the final judgment, and those issues had already been examined by the High Court. The Court held that if the High Court had erred on any point, the appellant could raise that error when the appeal is heard on its merits. After reviewing the facts, the Court expressed no hesitation in concluding that, despite certain deviations, the accused essentially received the benefit of a normal trial. The Court further stated that the matter of confirming the sentence was irrelevant because the sentences imposed on the accused did not require confirmation under the Hyderabad Criminal Procedure Code. In the appellant’s affidavit, he listed grievances such as being kept in military custody in a solitary cell, being separated from other prisoners, the tribunal being dominated by the Executive, and a stenographer being positioned behind him throughout the trial to record every word spoken between him and his counsel. The Court found it unnecessary to investigate the truth of these allegations, noting that even if they were true, they were immaterial to the present enquiry and bore no relation to any alleged inequality arising from the Special Tribunal Regulation. Finally, counsel raised an objection invoking article 21 of the Constitution, contending that the appellant had not been tried in accordance with the procedure established by law.

The argument presented was that the Military Governor did not possess the power, under section 3 of the Regulation, to refer a particular individual case to the Special Tribunal for trial. It was contended that the language of the provision authorised the Governor merely to direct the Special Tribunal to try “any offence whether committed before or after the commencement of this Regulation or any classes of offences,” and that this authority did not extend to the referral of a single case involving a specific person. Counsel stressed a distinction between the terms “offence” and “case,” asserting that an offence could be described as a case only when it was linked to a particular individual alleged to have committed it. Accordingly, the direction to try “any offence” was argued to mean a direction to try any offence defined in the Hyderabad Penal Code, irrespective of the offender, and not to direct the Tribunal to try an offence that constituted a case against a named person.

The Court found no merit in that contention. It observed that any interpretation of the words “offence” and “case” must be consistent with the context in which both terms appear in the same provision. The Court referred, for illustration, to section 5 of the West Bengal Special Courts Act, which was considered in the case of Anwar Ali Sarkar, and concluded that section 3 of the present Regulation does not create a separate category for “offence” and “case.” Rather, the provision empowers the Military Governor to direct a Special Tribunal to try an offence committed by a particular individual, which is equivalent to directing the Tribunal to try an individual case.

This interpretation was reinforced by the language of the Hyderabad Special Tribunals (Termination) and Special Judges (Appointment) Regulation, 1359 F. That Regulation states that a Special Judge appointed under it shall try “such” offences whose trials were pending before a Special Tribunal immediately before its dissolution and which were “made over” to the Judge by the authorities specified in section 5(1). The Court recognized this as a clear mechanism for transferring cases that were pending before the Special Tribunals at the time of their dissolution to the newly appointed Special Judges. Since both Regulations deal with the constitution and termination of the same bodies, they must be read together. The later Regulation uses the term “offences” in the sense of pending cases, and therefore the earlier Regulation of 1358 F must be given the same meaning.

Having examined the statutory language and the purpose of the Regulations, the Court concluded that the preliminary point raised by the appellant could not succeed. Consequently, the petition filed under article 32 was dismissed. The appeal was ordered to be posted for hearing on its merits in the normal course. The dismissal applied to Petition No. 368 of 1952 and to Cases Nos. 277 to 280 of 1951. Moreover, the order issued in Criminal Appeal No. 276 of 1951 was declared to govern the connected appeals numbered 277, 278, 279 and 280 of 1951, which were filed respectively by Khadar Ali Khan, Mohammad Hazi Khan, Mahbat Khan and Syed Nazir Ali, the four co-accused of Qasim Razvi in the Bibi-nagar dacoity case, who had been tried together with him before Special Tribunal No. IV at Trimulgherry.

In the case before the Court, the four individuals named Khadar Ali Khan, Mohammad Hazi Khan, Mahbat Khan and Syed Nazir Ali had been tried together with Syed Qasim Razvi by Special Tribunal No. IV at Trimulgherry. Each of them had received a term of imprisonment for offences that included dacoity and rioting. The High Court of Hyderabad had confirmed the convictions and the sentences, making only minor modifications to the original Tribunal orders. The appellants subsequently approached this Court on the basis of a certificate that had been issued by the Hyderabad High Court under articles 132 and 134 of the Constitution. Although the appeals had not yet been scheduled for a full hearing, the appellants, following the example of Qasim Razvi, filed a petition under article 32 of the Constitution, identified as Petition No. 368 of 1952, in which they challenged the validity of the Special Tribunal’s trial on the same constitutional grounds raised by Qasim Razvi. The Court therefore heard arguments on these questions, treating them as preliminary issues to be resolved before the merits of the appeals could be considered.

The Court noted that the points raised by the four petitioners were identical to those presented in Qasim Razvi’s case, the only difference being the individual affidavits submitted at the conclusion of the hearing on questions of law, in which each petitioner attempted to describe how he had been prejudiced by the Tribunal’s procedure. After examining those affidavits, the Court found no material that would justify departing from the view expressed in the Razvi decision. Counsel for the petitioners, Mr. Peerbhoy, conceded that the cases of Khadar Ali Khan and Mahbat Khan were exactly comparable with that of Qasim Razvi. Regarding Syed Nazir Ali and Hazi Khan, the petitioners alleged special facts: that they had been tried without any legal representation, that they did not understand English—the language in which the proceedings were conducted—and that the presiding judge, Mr. Pinto, did not understand Urdu, thereby denying them an opportunity to be heard. The Court declined to adjudicate the truth of these allegations, observing that they did not raise any constitutional issue. It further held that the requirement that proceedings be conducted in English did not, in itself, violate article 14 of the Constitution. The Court indicated that if, in fact, the accused had not received a fair trial or had been prejudiced in their defence, such matters could be raised when the appeals were heard on their merits. At the present stage, the only question was whether there had been any infringement of the fundamental rights guaranteed under Part III of the Constitution. Consequently, the Court overruled the preliminary points raised in the appeals, ordered that the appeals be listed for hearing on their merits in the normal course, and dismissed the application filed under article 32.

In the petitions numbered 172 and 368 of 1952 and the cases numbered 8.276 to 280 of 1951, the learned judge observed that the matters before the Court could not be distinguished in principle from three earlier decisions, namely The State of West Bengal v. Anwar Ali Sarkar (1), Kathi Raning Rawat v. The State of Saurashtra (2) and Lachmandas Kewalram Ahuja and Another v. The State of Bombay (3). The citations for these authorities were (1) [1952] S.C.R. 284, (2) [1952] S.C.R. 435 and (3) [1952] S.C.R. 710. The judge noted that the fourth case, cited as (1) [1952] S.C.R. 284, was especially comparable because it also involved a trial under a special law that had been valid until the Constitution of India came into force, but which was thereafter held to be invalid because it violated article 14(1). The judge emphasized that prior to the coming into force of the Constitution, the State of Hyderabad was not part of the Dominion of India. The Nizam, who was the ruler of Hyderabad, possessed full sovereignty and exercised absolute powers over his subjects, including the unrestricted authority to legislate at his pleasure or caprice.

The judge recounted that shortly after the Partition of India, and particularly in the year 1948, serious disturbances broke out in Hyderabad, leading to what is commonly referred to as the “police action” undertaken by India. During these disturbances a series of grave offences were alleged to have been committed on 10 January 1948, and complaints concerning these offences were placed before the authorities. The first information report relating to those incidents was filed on the following day. Approximately eight months later, on 13 September 1948, the police action culminated; it lasted three days and, upon its conclusion, a Military Governor was appointed for the State of Hyderabad. The Nizam, still the legal sovereign, invested the Military Governor with the authority to legislate for the State through regulations. Exercising this authority, the Military Governor issued a regulation on 31 October 1948, which is now the subject of challenge. Sections 2 and 3 of that regulation empowered the Military Governor to constitute Special Tribunals by general or special order, to direct those tribunals to try any offences or classes of offences he chose to name, and to transfer the trial of any particular case from the ordinary courts to a Special Tribunal. The regulation also prescribed a special procedure that differed from the ordinary court process. Acting under these powers, the Military Governor made an order on 26 June 1949 establishing several Special Tribunals, including the one relevant to the present appeal. Subsequently, on 6 October 1949, he issued another order specifying the offences for which the present appellants and their co-accused were suspected, namely dacoity, grievous hurt, wrongful confinement, arson, riot and destruction of evidence, furnishing particulars of time and place and providing a general description of the incidents.

The order specifically named the appellants and other individuals as accused with respect to the particular incidents that had been described, and it directed that those named persons be tried by the Special Tribunal for the offences of dacoity, grievous hurt, wrongful confinement, arson, riot and destruction of evidence. The Court was unable to view this order as a general direction to refer every offence of the same kind, regardless of the person committing it, to the Special Tribunal. Rather, the order was a specific and, in effect, unclassified selection of certain offences that were believed to have been committed by the particular accused named in the order. The trial thereafter proceeded. The charge was framed on 5 December 1949, and up to 26 January 1950—the date on which the Constitution came into force—forty prosecution witnesses were examined. Of those, eighteen were cross-examined before 26 January 1950 and the remaining twenty-two were cross-examined after that date. The appellants were convicted on 11 September 1950, and the High Court of Hyderabad upheld those convictions on 13 April 1951. It is conceded that the trial was valid and regular up to 26 January 1950. The issue that then arose was whether the trial could lawfully continue after that date before the same Tribunal and under the same special procedure. The Court identified three distinct questions to be considered: (1) whether the Regulation itself, or any part of it, violated article 14(1) of the Constitution; (2) whether the order issued under the authority of the Regulation violated that same provision; and (3) whether the procedure adopted by the Tribunal breached the constitutional guarantee. Regarding the first question, article 13(i) was examined, which provides that any law existing in the territory of India immediately before the commencement of the Constitution, to the extent of its inconsistency with the provisions of this Part, shall be void. The Court posed the hypothetical: had the law been enacted after the Constitution and had the trial begun thereafter, would it have been valid? If the answer were negative, the Court could not permit a conviction after the Constitution to rest on a procedure or a substantive rule that is repugnant to the fundamental chapter, even if the earlier stages of the trial had been conducted properly. The Court emphasized that this was not an attempt to give retrospective effect to the Constitution, because the essential part of a trial is its conclusion. Moreover, the Court was unwilling to interpret the fundamental provisions narrowly. In a broader sense, those provisions convey a promise of equality before the law and a guarantee of security that became effective the moment the Constitution was born. Assuming that the Regulation offends the Constitution and therefore could not be sustained after its commencement, the Constitution declares to every person entitled to its protection that no one shall be convicted or imprisoned under laws that infringe the guaranteed fundamental rights.

In the judgment, the Court observed that it is a breach of the fundamental guarantee to convict a person on the basis of a law that cannot remain valid after the Constitution came into force. The Court identified this principle as the same as that applied in the case of Lachmandas (1). The Court quoted the majority judgment in that case, stating: “As the Act was valid in its entirety before the date of the Constitution, that part of the proceeding before the Special Judge, which up to that date had been regulated by this special procedure cannot be questioned, however discriminatory it may have been, but if the discriminatory procedure is continued after the date of the Constitution, surely the accused-person may legitimately ask: ‘Why am I today being treated differently from other persons accused of similar offences in respect of procedure?’ It is therefore clear … that such continuation of the application of the discriminatory procedure to their cases after the date of the Constitution constituted a breach of their fundamental right guaranteed by article 14 and, being inconsistent with the provisions of that article, the special procedure became void under article 13 … Their complaint is not for something that had happened before 26 January 1950, but is for unconstitutional discrimination shown against them since that date. Therefore, the continuation of the trial after that date according to the discriminatory procedure resulting in their conviction and sentence cannot be supported. Indeed, in a sense the Special Judge’s jurisdiction came to an end, for he was enjoined to proceed only according to the special procedure and that procedure, having become void as stated above, he could not proceed at all as a Judge of a Special Court constituted under the impugned Act.” The Court then turned to the question of whether the Regulation could have been upheld as valid law if it had been promulgated after the Constitution. It emphasized that, in testing the validity of a law, it is irrelevant what has been done under that law; a law is either constitutional or it is not, and its validity does not depend on the consequences it has produced. The Court described this position as self-evident and noted that it follows the reasoning in the majority decision of the West Bengal case (1), summarized in headnote (ii) at page 285 and headnote (v) at page 286. The Court further cited Lachmandas (1) at page 733, recording the passage: “Further, the supposed basis of the alleged classification, namely the fact of reference to the Special Court before the Constitution came into effect, has no reasonable relation to the objects meant to be achieved by the Act.” In the Court’s opinion, this passage shows that the majority considered it relevant and important to determine the post-Constitutional validity of an enactment that had been valid up to the date of the Constitution by applying the standards that govern post-Constitutional law.

In the present case the impugned Regulation does not expressly state any objects. The absence of a stated object is not, by itself, fatal to the Regulation, but it does require the Court to ascertain the objects from the language of the Regulation and from the surrounding circumstances as far as possible. If, after that exercise, the objects that can be inferred cannot be reasonably related to the basis on which the classification of offences has been made, then, relying on the authority of Lachmandas’s case(1), the Regulation must be held to be post-constitutionaly improper. When the surrounding circumstances are examined, only two possible objects can be discerned. The first appears to be the desire for speedier trials, and the second seems to be the aim of achieving a more convenient disposal of certain unspecified cases. The first of these objects has already been condemned as discriminatory in the West Bengal case(2), where the Court observed that even if the preamble were to illuminate the provision, the purpose of a “speedier trial” is too vague, uncertain and elusive to constitute a rational basis for discrimination. By the same reasoning, the second object is even more objectionable. Moreover, at least four of the seven judges in West Bengal considered the Special Courts Act objectionable because it failed to lay down any basis for the classification of the cases that could be sent to the Special Court for trial under a procedure that differed substantially from that prescribed by the Criminal Procedure Code, thereby leaving the selection of offences and cases to the unfettered discretion of the State Government. In the Saurashtra case(1) the majority held that the mere fact that an Act authorises a State Government to direct that offences or classes of offences be tried by a special court does not offend Article 14. Reading that decision together with the earlier judgments leads to the principle that what matters is not the establishment of special courts per se, unless their composition is itself objectionable, but rather the procedure to which they are subjected. If the special judges are chosen from a class of duly qualified, experienced and impartial persons and are required to follow a procedure that does not differ substantially from that of ordinary courts, there can be no reasonable objection. However, if the procedure deprives the accused of substantial advantages that are available to similarly situated accused, Article 14 becomes engaged. The impugned Regulation in the present case suffers from the same defects. Under the Regulation the Military Governor is empowered to direct that any offence, whether committed before or after the commencement of the Regulation, or any class of offences, shall be tried by a Special Court, and he may also transfer any particular case from the ordinary criminal courts to a Special Tribunal. The Governor’s discretion under the Regulation is unfettered and absolute. Regarding the special procedure, three of its features have been examined in the earlier decisions and have attracted criticism.

The Court identified several aspects of the Regulation that it deemed repugnant to article fourteen. The first aspect was the complete lack of committal proceedings before a case could be transferred to a Special Court. The second aspect involved the denial of three important safeguards: the right of an accused to seek revision of an order, the right to request a transfer of the trial to an ordinary court, and the right to demand a fresh trial, known as a de novo trial, under certain circumstances. The third aspect was the authority granted to the Special Tribunal to conduct its proceedings on a summary basis even in situations where such a summary procedure would not normally be permissible. The Court noted the citation [1952] S.C.R. 435 in connection with these observations.

In the case before it, the Court observed that the issue of a de novo trial was intertwined not only with the absence of a statutory right of transfer but also with the fact that a change in the composition of the Special Bench – that is, the replacement of some of its members – did not restore the accused’s ability to demand a fresh trial. The Court further pointed out additional discriminatory features of the Regulation that were specific to Hyderabad. These included the elimination of Urdu, which in practice is the language used in Hyderabad courts, and a provision that allowed certain sentences to be confirmed without re-examination. The Hyderabad High Court had previously attempted to excise the objectionable parts of the Regulation and to rewrite it without those provisions in the case of Abdur Rahim & others v. Joseph A. Pinto & others, but the Court explained that such a severance is permissible only if the faulty provisions can be removed while leaving a workable statute that the legislature could have enacted on its own. This principle was derived from The State of Bombay v. F. N. Balsara. The Court expressed doubt that such a clean separation was feasible in the present circumstance. For example, the Regulation stipulates that proceedings should be summary, yet it also permits a warrant procedure for special reasons that must be recorded in writing. Deciding which of these two procedures is unconstitutional would require an actual case to be sent to the Special Tribunal for trial, a scenario that has not yet arisen. Moreover, if the summary-procedure clause were struck down, even minor offences such as simple hurt would have to be tried using the cumbersome warrant procedure; conversely, if the warrant-procedure clause were removed, serious offences that would normally be tried summarily in a sessions court would lose that venue. The Court could not envisage a manner in which the beneficial parts of the Regulation could be isolated from the defective parts without rendering the entire enactment unworkable. While acknowledging that this analysis depended on a particular method of classification, the Court preferred to focus on the narrower question of whether actual discrimination existed and whether it persisted after the Constitution came into force. The most evident instance of such discrimination, according to the Court, was that the proceedings were conducted in English at a time when Urdu was the customary language of the courts in Hyderabad.

In Hyderabad, the language actually used in the courts was Urdu, and this fact affected the trial of the appellants. One of the appellants was proficient in English, another had no knowledge of English, and a third possessed only a very limited understanding of English. If the official language of the courts in that area had been English, the difference in the appellants’ command of English would not have created any discrimination, and the situation would have been comparable to the occasional circumstance in which an accused is tried in a jurisdiction whose language he does not understand. However, because Urdu functioned as the de facto language of the courts, every person in the region who knew Urdu could be tried in a language that they understood, while the appellant who could not understand Urdu was forced to face a trial conducted in a language that he either did not know at all or understood only imperfectly. The Court noted that in Hyderabad the practical language of the courts was Urdu and that the importance attached to this requirement was such that judges and counsel were not allowed to act in the courts unless they possessed sufficient knowledge of Urdu. The matter became even more striking when an eminent King’s Counsel from England was denied the opportunity to represent one of the appellants on the ground that the counsel did not know Urdu, even though the Special Tribunal itself conducted its proceedings in a language that the counsel did know. Moreover, the President of the Special Tribunal also did not know Urdu, which added another layer of inconsistency. The Court stated that it could not disregard this circumstance as immaterial; rather, it was material and vital because it struck at the core of the trial process. The Court found that the situation amounted to discrimination within the meaning of article 14 of the Constitution and that such discrimination persisted even after the Constitution came into force. While the Court preferred to ground its analysis on the broader concept of the social conscience of a sovereign democratic republic, as reflected in the Constitution, it observed that judges serve as the keepers and interpreters of that conscience, much as the Lord Chancellor does for the King’s conscience in England. The Court expressed that determining whether such discrimination existed was no more difficult than applying the “reasonable man” standard in ordinary cases. In its view, it was fundamentally wrong to guarantee equality before the law on one hand while permitting an arbitrary distinction that could not be justified after the Constitution simply because it had originated earlier. The Court described it as “grotesquely fantastic” to insist that counsel in a tribunal whose proceedings were to be conducted in English must know Urdu, while simultaneously excluding counsel who knew English but not Urdu.

The Court observed that the Special Tribunal stipulated that its proceedings would be conducted in English while simultaneously refusing to admit counsel who were not conversant in Urdu but were able to speak English. The Court recognised that these requirements might have been derived from the customary rules of the Hyderabad Bar, which were premised on the assumption that Urdu was the language of the courts. The Court reasoned that if one of the rules could be waived, relaxed or altered, the other rule could be treated in the same manner. Applying both rules together, the Court held, produced a form of discrimination prohibited by article 14 of the Constitution. The Court explained that either Urdu possessed a special significance in the relevant area, making its exclusion a serious discrimination, or Urdu was an irrelevant fact, in which case the exclusion of counsel who knew English but not Urdu also constituted grave discrimination. The Court further noted that the accused should be permitted to choose counsel of his own preference, as similarly situated persons could claim, on the sole ground that the chosen counsel understood the language of the trial and did not need to know any language that was not the court’s language for that special trial. In either circumstance, the Court concluded that the simultaneous imposition of the language requirement for the proceedings and the denial of counsel lacking Urdu knowledge violated the principle of equality before the law.

The Court clarified that its observation was not a finding that the appellants had been treated unfairly by the Tribunal. On the contrary, the Court found that the Tribunal had extended numerous benefits to the appellants, including the provision of substantial funds by the State to engage counsel on a generous scale. The Court expressed the view that the appellants’ decision to dismiss those counsel after receiving State payment demonstrated bad faith and an intention to obstruct a fair and proper trial as envisioned by the Constitution. Nevertheless, the Court emphasized that the question before it concerned discrimination within the meaning of article 14, not the overall fairness of the trial. The Court acknowledged that the waste of money and time resulting from the contested proceedings would be regrettable, but considered such loss to be part of the necessary cost of upholding the constitutional principles guaranteed by democracy. Regarding pending matters of revision, confirmation of sentences, transfer and bail, the Court rejected the contention that the sentences could not have been subject to confirmation in an ordinary court or that no applications for transfer, revision or bail were filed after the Constitution came into force. The Court held that the Special Tribunal Regulation expressly prohibited those actions, and consequently, relying on the majority judgment in Lachmandas’s case, the Special Judge’s jurisdiction terminated with the commencement of the Constitution. The Court further observed that the discrimination lay in the trial itself or its continuation, and that the accused need not wait for the trial’s conclusion to raise a complaint, even if he might later be acquitted or receive a non-appealable sentence. The Court affirmed that the accused possessed the right to challenge the trial, or any material portion thereof, conducted by a tribunal that, as established in Lachmandas’s case, ceased to have jurisdiction after the Constitution. Accordingly, the Court concluded that all the convictions arising from the Special Tribunal should be set aside.

A fresh trial was ordered to be conducted in accordance with the decision reported in (1) [1952] S.C.R. 710, and the normal procedure of the State in that area was to be followed. The matter before the Court involved a petition filed on behalf of Syed Qasim Razvi. The petition raised a constitutional issue, asking whether the trial and conviction of the petitioner by Special Tribunal IV at Trimulgherry, Secunderabad, were void because they contravened articles 14 and 21 read together with article 13 of the Constitution.

The Special Tribunal, which consisted of a President and two members, had been created by the Military Governor of Hyderabad under section 3 of Special Tribunal Regulation V of 1358-Fasli. It was a matter of public record that police action had taken place in Hyderabad on 13 September 1948, and that the Regulation in question had been promulgated by the Military Governor on 30 October 1948.

An armed dacoity had been committed on 10 January 1948, between 5 p.m. and 7:30 p.m., at Bibinagar village and its railway station, a location approximately twenty-one miles from Hyderabad. Syed Qasim Razvi and his co-accused were charged with rioting, rioting with deadly weapons, dacoity, arson, causing grievous injuries to persons and destroying evidence of the crime. The First Information Report was lodged the following day, but the charge-sheet was not presented to the Special Tribunal until 28 August 1949 because some of the accused were absconding and the investigation had to be carried out under difficult circumstances.

On 6 October 1949, the Military Governor, acting under section 3 of the Regulation, directed that the Tribunal should try the offences listed as Serial No 1 and Serial No 2. Serial No 1 concerned the alleged murder of a person named Shoebulla Khan, which was said to have been committed by Syed Qasim Razvi and his co-accused. Serial No 2 related to the offences connected with the Bibinagar dacoity, involving Razvi and twenty other persons. The Court noted that it was not concerned with the first incident, and it understood that Razvi had been acquitted of the murder charge.

In the second case, forty prosecution witnesses were examined in-chief up to 21 November 1949. Eighteen of those witnesses were cross-examined between that date and 26 January 1950, and the remaining twenty-two were cross-examined after that date. The petitioner, Razvi, was examined on 29 November 1949 and again on 26 February 1950. The charges against him were framed on 5 December 1949. He was convicted on 11 September 1950 and sentenced to seven years’ rigorous imprisonment under section 330 of the Hyderabad Penal Code, which corresponded to section 395 of the Indian Penal Code. In addition, he received two years’ rigorous imprisonment for each of the following sections: section 124 (corresponding to section 148 of the Indian Penal Code), section 177 (corresponding to section 201 of the Indian Penal Code) and section 177/66 (corresponding to section 109 of the Indian Penal Code). All of these sentences were directed to run concurrently. Similar convictions and sentences were imposed on the co-accused.

The convictions and sentences were upheld on appeal by the High Court at Hyderabad on 13 April 1951.

In August 1951 the respondents obtained leave to appeal to this Court under articles 132 and 134 of the Constitution. While those appeals remained pending and the court record was being prepared, the petitioner filed a petition under article 32 seeking a writ of certiorari that would command the production of the High Court record, set aside the orders dated 11 September 1950 and 13 April 1951, and order his release. The petition contended that Regulation V of 1358-Fasli had become void after 26 January 1950 because the procedure it prescribed was discriminatory and consequently violated the petitioner’s fundamental right to equality before the law under article 14 of the Constitution. It further alleged that the continuation of the petitioner’s trial under the said Regulation after that date infringed his rights under articles 14 and 21, and it prayed that the conviction and sentence be declared illegal and without jurisdiction. The same ground of challenge was raised in the appeal, but because the appeal was not yet ready, counsel for the petitioner, Mr Peerbhoy, asked the Court to decide the validity of the impugned Regulation without waiting for the printed record. Accordingly the Court agreed to hear the question of jurisdiction as a preliminary issue in the appeal. Counsel for the petitioner then presented a detailed catalogue of the alleged discriminatory features of the Regulation. He first attacked the Regulation on the basis that it lacked a preamble specifying its objects, such as the promotion of speedy trial, maintenance of public order, or safety of the State—features commonly found in security legislation. The counsel observed that this defect need not be fatal, because the purpose of the Regulation could be inferred from its operative provisions and from the surrounding circumstances. He pointed out that, given the disturbed conditions prevailing in the State at the time, the large number of offences being committed, and the threat of further violence, the Military Governor might reasonably have been directed to simplify and shorten the procedure for trying offenders so as to secure swift justice. The appointment of special judges or special tribunals, the counsel noted, was intended in the same spirit, namely to expedite the disposal of cases and prevent undue delay. Section 3 of the Regulation, he explained, authorized the Military Governor “by general or special order [to] direct that the special Tribunal shall try any offence whether committed before or after the commencement of the Regulation, or any class of offences,” and also authorized the Governor “by any such order [to] direct the transfer to a special Tribunal of any particular case from any other special Tribunal or any other criminal court, or to direct the transfer from a special Tribunal of any particular case to any other criminal court.” The counsel then asserted, with force, that…

It was observed that no notification had been issued in accordance with section 3 of the Regulation to specify which offence or class of offences were to be tried by the Special Tribunal. The petitioner's counsel argued that the petitioner would not have objected if a particular class of offences throughout the State, or in any specific area, had been designated for expeditious disposal before a Special Tribunal. However, the petitioner’s own case was the only one singled out for trial by the Special Tribunal, while all other offences, irrespective of their nature or seriousness and committed in Bibinagar village either before or after the incident, were dealt with in the ordinary courts under the procedures laid down in the Hyderabad Criminal Procedure Code. The petitioner's counsel contended that there was no justification, let alone any rational basis, for this exceptional treatment. They asserted that the trial of the petitioner before the Tribunal, which followed a special procedure, was discriminatory and violated his right to equality before the law. Further objections were raised that the Regulation did not prescribe any qualifications for the members of the Tribunal and that their appointment was left to the unfettered discretion of the Military Governor. No requirement for academic qualifications or legal training was mentioned, and this point was described as unsubstantial. The Tribunal constituted for the present case could not be criticised on the ground that unfit persons were appointed, except for the observation that the President of the Tribunal did not understand the language of the accused. Nonetheless, nothing prevented the Military Governor from appointing individuals lacking proper qualifications, as his power of appointment was not limited by any restrictions. The counsel argued that it would be untenable to claim that the Governor had abused this unrestricted power.

Mr Peerbhoy identified a number of provisions of the Regulation that he characterised as discriminatory. First, the Special Tribunal was empowered to take cognizance of offences without the accused being formally committed to it for trial. Second, the Regulation contained no provision for a trial to be conducted with a jury or with assessors. Third, English was prescribed as the language of the Tribunal. Fourth, evidence was not to be recorded in full; instead, only a memorandum of the substance of the evidence was to be prepared. Fifth, the Tribunal was not bound to adjourn a case. Sixth, there was no provision for a de novo trial in the event of a change in personnel. Seventh, although the Special Tribunal was entitled to follow a summary procedure, it was also permitted to apply the procedure prescribed for the trial of warrant cases. Eighth, the Regulation allowed a trial to proceed in the absence of the accused where such absence resulted from his conduct inside or outside the court that was intended to impede the administration of justice. Ninth, the right to bail or to obtain a writ of habeas corpus was removed. Tenth, there was no right to re-cross-examine prosecution witnesses before the accused began his defence. Eleventh, the Special Tribunal was treated under the Regulation as a Court of Sessions exercising original jurisdiction, thereby affecting the scope of appellate and revisionary rights available under the Hyderabad Code.

In this case the Court recorded that the only appeal available to a party was a single appeal to the High Court. The Court explained that had the matter been tried before a First-Class Magistrate or a District Magistrate, a further appeal would have been permissible provided that the imposed sentence did not exceed four years of imprisonment. The Court further observed that no statutory provision permitted a transfer of the case to another court, that there was no right of revision, and that the right of confirmation of a sentence – a right that had existed under the Hyderabad Code in favour of the High Court, the Government and the Nizam in certain circumstances – was also absent. While acknowledging the relevance of the remaining provisions, the Court indicated that it would concentrate on the more substantive provisions enumerated as numbers 1, 2, 3, 4, 6, 9, 12, 13 and 14. Turning to the first of these, the Court referred to section 267A of the Hyderabad Criminal Procedure Code, hereafter called the Code. Unlike Chapter XVIII of the Indian Code, section 267A did not obligate that every case triable by a Court of Sessions be committed to that court by a Magistrate. The Court stated that direct commitment to the Sessions without a preliminary inquiry was permissible only in two limited situations: first, where the accused expressly refused to undergo such an inquiry, and second, where, upon questioning, the accused admitted facts constituting an offence that fell within the jurisdiction of a Sessions Court. In any other circumstance, the Court held that a Magistrate could, after recording no evidence or after recording a portion of the evidence, if satisfied that sufficient grounds existed, commit the accused to the Sessions. The Court added that Section 4(1) of the Regulation expressly excluded the commitment proceedings, thereby limiting the Magistrate’s power to commit in accordance with the Code.

The Court then addressed the second highlighted provision, namely section 414 of the Code, which authorized the Government, by issuing a notification, to direct that a particular class of cases be tried in the High Court by jury or in any Court of Sessions either by jury or with the assistance of assessors. The Court noted that this governmental power was absent from the Regulation. While confirming that the State did not have a general system of jury trials or trials with assessors, the Court emphasized that the Government retained the authority to exercise this power and could order that any specific class of cases be tried in the manner provided by section 414. Regarding the language of the court, the Court referred to section 286, which required that witness testimony be recorded in the language of the court, and to sections 294 and 295, which mandated that the judgment be written and pronounced in that same language. The Court observed that neither party cited a specific provision indicating the language of the court, but counsel for one side, Mr Peerbhoy, asserted that Urdu served as the court’s language. He explained that State statutes were enacted in Urdu, that arguments were presented in Urdu, that judgments were delivered in Urdu, and that reports of decisions were also published in Urdu. The Court further noted that the Code presented to it was in Urdu, although the only explicit reference to Urdu within the Code was section 230, which required that every framed charge be written in Urdu. Consequently, the Court found it plausible, though not conclusively established, that Urdu functioned as the language of the court, reflecting its historical use by the ruling class.

It was observed that the language of the court might not be the language spoken by the majority of the people in the State. Section 286 of the Code required that the testimony of each witness be recorded in the language of the court as a continuous statement. In contrast, section 4, sub-section (2) of the Regulation provided that a Special Tribunal was not required to record the evidence at length; the Tribunal needed only to note the substance of each witness’s deposition. Nevertheless, the Regulation also gave the Tribunal the authority to order, for any particular trial, that the evidence be recorded in full. Consequently, while the Code laid down a mandatory rule that evidence must be recorded in its entirety, the Regulation introduced a contrary, directory provision that applied only to selected trials. Section 281 of the Code, which corresponded to section 350 of the Indian Code, conferred on an accused the right to seek a fresh trial (a de novo trial) when a magistrate who had heard or recorded any part of the evidence ceased to exercise jurisdiction and was succeeded by another magistrate. The magistrate, however, retained the power to refuse the accused’s request, either wholly or partially, and if he refused, he was obligated to record the reasons for such refusal. The Court noted that although the right to demand a fresh trial was subject to the magistrate’s discretion to refuse and to provide reasons, the language of the Code suggested that such a refusal should be exceptional rather than routine. The learned Advocate-General for the State observed that, in the present case, the issue of a de novo trial did not arise on the facts, but it could not be entirely ruled out that a vacancy might occur for reasons beyond human control.

Section 468 of the Code allowed a person accused of a non-bailable offence to obtain bail unless there were reasonable grounds to believe that the accused had committed an offence punishable with death or transportation for life. The Regulation, however, excluded this right by virtue of section 6, sub-section (2), which expressly stated that no court possessed any jurisdiction over proceedings conducted before a Special Tribunal. Chapter XXXVIII of the Code dealt with the power of transfer and vested a broad authority on the High Court, under section 494, to transfer cases from one court to another. By contrast, section 3 of the Regulation granted the sole power of transfer to the Military Governor, a power that was to be exercised suo motu, and it did not permit an accused to move an application for transfer. Section 360 of the Code conferred on the High Court, the Court of Sessions and the District Magistrate the power of revision over orders of subordinate courts; however, this power was excluded by section 7, sub-section (2) of the Regulation.

Section 20 of the Code provided that a sentence passed by a Sessions Judge could be enforced only after it was confirmed in certain circumstances: a sentence of imprisonment exceeding ten years required confirmation by the High Court; a sentence of life imprisonment required confirmation by the Government; and a sentence of death required confirmation by his Exalted Highness the Nizam. However, sub-section (2) of Section 7 of the Regulation excluded any power of confirmation by any authority whatsoever. Counsel for the petitioner, identified only as the petitioner’s counsel, relied heavily on the decision in Lachmandas Kewalram Ahuja v. The State of Bombay, reported in 1952 S.C.R. 710, to argue that the impugned Regulation was void on the ground of a violation of article 14 and urged that the case be decided according to the principles laid down by the majority in that decision. The court observed that an exposition of those principles was unnecessary because the matter had already been exhaustively considered in The State of West Bengal v. Anwar Ali Sarkar, where the Chief Justice and the other learned members of the Bench had expressed both separate and collective views on the precise meaning and scope of article 14. The court indicated that, in its view, the majority opinion expressed by Justice Das in the Bombay case—joined by Justices Mukherjea, Chandrasekhara Aiyar and Bose, with the Chief Justice dissenting—was the controlling view. The court then proceeded to recount the facts of the Bombay case. It stated that a robbery had been committed in broad daylight at Ahmedabad on 26 May 1949, during which a driver and a peon of the Central Bank were shot dead while transporting bank money in a motor-van. Under section 12 of the Bombay Public Safety Measures Act, 1947, which was worded similarly to section 5(1) of the West Bengal Act and section 11 of the Saurashtra Ordinance, the Act provided that “a Special Judge shall try such offences or class of offences or such cases or class of cases as the Provincial Government may by general or special order in writing direct.” Section 10 empowered the Government, by notification in the Official Gazette, to constitute special courts of criminal jurisdiction for areas specified in the notification. By a notification issued in August 1949, the State of Bombay, exercising its power under section 11, appointed the District and Sessions Judge of Ahmedabad as the Special Judge to try the accused. The charges against the accused were framed on 13 January 1950 without any committal by a Magistrate. Seventeen prosecution witnesses were examined before 26 January 1950 and a further forty-five after that date. The accused were convicted on 30 March 1950 and sentenced to death. Their appeal was dismissed by the Bombay High Court, but they obtained a certificate under article 132(1) of the Constitution and subsequently preferred appeals to this Court. The question that arose for consideration was whether the Bombay Act, or specifically the portion of section 12 that authorized the State Government to direct particular cases to be tried by a Special Judge appointed under that Act, violated the equal-protection clause of article 14 and was therefore void under article 13 based on the principles laid down by this Court in earlier cases, namely The State of West Bengal v. Anwar Ali Sarkar and Kathi Raning Rawat v. The State of Saurashtra.

The matter that came before the Court required it to consider whether the Bombay Act, or more precisely the portion of section twelve that empowers the State Government to assign particular cases to a Special Judge appointed under that Act, violates the guarantee of equal protection of the law contained in article fourteen of the Constitution. The Court had to determine whether, on that basis, the provision was void under article thirteen, applying the principles that had been articulated by this Court in two earlier decisions, namely The State of West Bengal v. Anwar Ali Sarkar (1) and Kathi Raning Rawat v. The State of Saurashtra (2). The majority opinion was delivered by Justice Das, with Justices Mahajan, Mukherjea and Chandrasekhara Aiyar concurring. Justice Das answered the question affirmatively, holding that the Constitution requires that the accused not be subjected to discriminatory treatment in procedural matters and that they must be tried in accordance with the ordinary law. Accordingly, the Court ordered that a fresh trial be conducted.

Justice Das then examined the provisions of the Act in detail and set out, at page 726, a concise summary of the position. He observed that, in addition to providing for enhanced punishment and whipping, the Act abolishes the committal proceedings required by section 13 (1), allows the Special Judge to record only a memorandum of the evidence, and grants the Special Judge a broader authority to refuse to summon a defence witness than is available to a regular court under section 257 (1) of the Code of Criminal Procedure. Moreover, the Act deprives the accused of the right to apply for a transfer of the case or for revision of any order. Justice Das emphasized that these departures from ordinary criminal procedure inevitably prejudice the persons subjected to the special procedure and that such prejudice cannot be denied. He noted that, by its judgments in The State of West Bengal v. Anwar Ali Sarkar (1) and Kathi Raning Rawat v. The State of Saurashtra (2), this Court has held that article 14 forbids discrimination not only by substantive law but also by procedural law. The Court further observed that the procedures introduced by the West Bengal Special Courts Act and the Saurashtra Ordinance—both of which contain similar procedural departures—constitute discrimination against persons tried before a Special Judge, as reflected in the citations (1) [1952] S.C.R. 284 and (2) [1952] S.C.R. 435. Consequently, the Court concluded that section 5 (1) of the West Bengal Act and section 11 of the Saurashtra Ordinance, each corresponding to section 12 of the Bombay Public Security Measures Act, were unconstitutional and void insofar as they authorised the Government to direct specific and particular cases to a Special Judge. Applying the same reasoning to the Bombay Public Safety Measures Act 1947, Justice Das held that, because of the same departures from ordinary law, section 12 of that Act—when it permits the Government to assign particular cases to a Special Judge—must also be declared unconstitutional.

In addressing the contention that the special procedure established by the impugned Act represented a departure from ordinary procedural law and, in several important respects, disadvantaged the persons subjected to it, the Court observed that the discrimination did not cease merely with the Special Judge taking cognizance of the case without the matter being formally committed to him. The Court explained that the discriminatory effect persisted through later stages of the proceedings because the accused could not, even at those stages, obtain a full record of the evidence presented for or against him, could be denied summons for any defense witness he wished to examine merely because the Special Judge deemed such evidence immaterial, and could not exercise the right to apply to a superior court for transfer of the case despite any evident bias of the Special Judge, nor could he seek revision of any order issued by the Special Judge. The Court further noted that, although the Act had been wholly valid before the Constitution came into force, the portion of the proceeding before the Special Judge that was regulated by this special procedure could not be challenged regardless of its discriminatory character. However, if the same discriminatory procedure continued after the Constitution became operative, the accused could legitimately question why he was being treated differently from other persons accused of similar offences with respect to procedural rights. The Court held that there was no connection between the basis of the purported classification and the objects of the Act, and therefore, in the absence of a rational basis for classification, no justification existed after the Constitution’s commencement for depriving the appellants of the right to seek transfer or revision, to obtain process for the attendance of defense witnesses, or to have witness testimony recorded as in an ordinary trial governed by the Code of Criminal Procedure. Consequently, the Court concluded that the discrimination persisted after the Constitution’s enactment, violating the appellants’ fundamental right to equality under article 14. Because such discrimination was inconsistent with article 14, the special procedure became void under article 13. Since procedural rights entail no vested entitlement, the appellants were entitled to be tried according to the ordinary procedure after the Constitution’s commencement. Their grievance did not concern actions prior to 26 January 1950 but concerned the unconstitutional discrimination they suffered thereafter.

In the present case the Court observed that after the Constitution came into force the Special Judge could no longer exercise his jurisdiction, because he was bound to follow the special procedure prescribed by the impugned Act. Since that procedure had been declared void, the Judge of the Special Court could not proceed at all under the statute that created his office. The matter that required determination, therefore, was whether the continuation of the special procedure by the Act after the Constitution became operative inflicted prejudice on the appellants and, consequently, violated the new constitutional guarantee of equal protection of the law secured by article 14. The Court noted that the Constitution did not operate retrospectively to set aside any part of the proceedings that had already been completed. However, the Constitution could not allow the special procedure to obstruct the enjoyment of rights that arose after its commencement, and it therefore had to invalidate the discriminatory procedure if it were attempted to be applied after the Constitution had taken effect. The Chief Justice had held that the provisions of the Constitution concerning fundamental rights possessed no retrospective operation and did not affect criminal prosecutions that started before the Constitution, even though section 12 of the Bombay Act was found to be discriminatory and void. The Court, though reluctantly, reproduced extensive passages from the majority judgment because those passages had been the subject of considerable controversy before the Court.

The Court explained that one counsel argued that the majority had condemned the Act as “bad” on the basis of its facially discriminatory provisions, and that the question of whether those provisions had actually been applied to the accused after the Constitution’s commencement was deemed entirely irrelevant. Another counsel contended that the Court had not examined whether the Act should be declared void in the circumstance that the discriminatory provisions were not applied. The overall trend and reasoning of the judgment, according to the Court, indicated that the Court did not deem it necessary to decide whether the discriminatory provisions had been applied, because that issue became irrelevant once the Court held that the Act was void after the Constitution came into force, simply because its face contained discriminatory provisions. The Court identified four identical features common to the two cases under consideration: the absence of committal proceedings, the power to record only a memorandum of the evidence, and the lack of any right to apply for transfer or for revision. The Court observed that it was not easy to see how a right to seek transfer or revision could be exercised under the Regulation after 26 January 1950. Moreover, during the cross-examination of twenty-two witnesses, if the Tribunal overruled an objection of the accused or passed an adverse order, the accused could not challenge that order by way of revision, nor could the accused apply for transfer even if the Tribunal’s record showed bias.

The Court observed that the accused could not seek revision of a Tribunal order, nor could he request a transfer even if the Tribunal showed bias in recording evidence. It noted evidence that a Tribunal order dated 15 December 1949 was taken in revision to the High Court, but that revision was dismissed on 27 February 1950. The Court explained that the office had indicated that under section 7, clause 2 of the Regulation no revision was permissible, yet the learned Chief Justice, when rejecting the revision petition, merely stated that he saw no reason to interfere at that stage. The Court held that the rejection did not imply that interference was impossible at a later stage, such as during the appeal, and that the Chief Justice could not have been unaware that a revision against a Tribunal order under the Regulation was not competent. The Court emphasized that this order was issued after the Constitution had come into force. Similarly, the Court said, if the accused had applied for bail and the application had been refused, the accused would not have been able to successfully move the High Court in revision against the refusal order. Consequently, the Court concluded that, just as in Lachmandas’s case, the procedure prescribed by the Regulation could not continue without eliminating the right to apply for transfer or revision, and that the trial could not proceed after 26 January while the discriminatory provisions remained. The Court further observed that the Regulation expressly denied the right to confirmation of sentences handed down by the Tribunal, and that whether a question of confirmation arose in the present circumstances was irrelevant, because such a question could arise if a sentence exceeding ten years had been imposed. The Court found no substantive difference between Lachmandas’s case and the present matter. It noted that the learned judges were in a better position to interpret the decision in Lachmandas’s case and to determine whether the intention was to declare the Act void, irrespective of whether its discriminatory provisions had been applied in fact. The Court stated that it could not look beyond the actual wording of that decision and that its own conclusion rested entirely on the language and reasoning used in that case. The Court reinforced its view by citing observations of Justice Mukherjee in Anwar Ali Sarkar’s case, where it was held that when a statute itself incorporates discrimination without a proper or reasonable basis, the statute is invalidated for conflicting with the equal protection clause, and that the manner in which the statute is actually applied may not be a material fact for consideration.

The Court observed that the issue to be examined under article 14 was whether the statute was discriminatory in its very nature, and that this determination had to be made principally by looking at the law’s effects rather than its stated purpose or objectives, as expressed in the passage quoted on page 349. The Court then found it useful to refer to the West Bengal case at this point. In that case, the accused had been charged with several offences that they allegedly committed during an armed raid on the Jessop Factory at Dum Dum. Those accused were convicted by a Special Court that had been created under section 5(1) of the West Bengal Special Courts Act, No X of 1950. The relevant judgments were reported in [1952] S.C.R. 710 and [1952] S.C.R. 284.

The accused subsequently moved the Full Bench of the Calcutta High Court under article 226, seeking a writ of certiorari to set aside both their convictions and the sentences imposed. The High Court held that the Special Court lacked jurisdiction to try the matter because section 5(1) of the Special Courts Act was void pursuant to article 32, on the ground that the provision denied the accused the equal protection of the laws guaranteed by article 14. The State appealed this judgment, and a majority of six learned Judges of this Court affirmed the High Court’s view, while the Chief Justice dissented.

The Court noted that the observations made by the majority of Judges directly addressed the arguments raised in the present matter, and therefore reproduced their wording. Mahajan J observed that the Special Act established rules for the trial of offences that were substantially different from those laid down in the general law of the land, namely the Code of Criminal Procedure, and that such a departure could not be seriously denied. He explained that the Act short-circuited the ordinary procedural safeguards in material respects. He further stated that the special law not only removed the safeguard of the committal procedure and the right to a trial by jury or assessors, but also deprived the accused of a de novo trial in the event of a transfer, and exposed them to conviction and punishment for major offences other than those for which they had originally been charged or tried. He added that, to a considerable extent, the remedies available to an accused in the higher courts were thereby reduced. Even if the statute appeared on its face not to be discriminatory, Mahajan J concluded that it was discriminatory in its effect and operation because it vested unregulated discretionary power in the executive government, and therefore had to be declared unconstitutional.

Mukherjea J, agreeing with the Attorney-General that immaterial differences might not amount to discrimination, nevertheless found it difficult to accept that the procedural differences introduced by the West Bengal Special Courts Act were minor or unsubstantial. He expressed the view that these differences prejudiced the interests of the accused, and therefore could not be characterized as a mere trivial deviation from the general standard.

The Court noted that section 6 of the Special Courts Act stipulates that a Special Court may take cognizance of an offence without the accused first being committed for trial, and that, when trying the accused, the Special Court must follow the procedural regime applicable to warrant cases before magistrates. The Attorney-General argued that the removal of the committal stage was of no consequence because the warrant procedure, which the Special Court is required to observe, provides an opportunity for a preliminary examination of the evidence before a charge is framed. Under section 350 of the Criminal Procedure Code, when a case that has been partly heard is transferred to another magistrate for disposal, the accused is entitled to demand that the witnesses already examined be re-examined and re-heard before the second magistrate commences the proceedings. The Court observed that this statutory right is withdrawn when a case is transferred from one Special Court to another under section 7 of the Special Courts Act. Moreover, the Court pointed out that the new procedure eliminates any right of revision by the High Court, although constitutional rights remain in theory. It was further observed, with the support of counsel for the respondents, that an application for bail cannot be filed before the High Court on behalf of an accused after the Special Court has refused bail. These and other provisions of the Act, the Court held, demonstrate a substantial curtailment of the accused’s rights by the impugned legislation; and if such curtailment applies only in certain cases and not in others, even when the factual circumstances are identical, a question of discrimination inevitably arises. The Court reiterated that the discrimination stems from the Act itself, because it confers unfettered discretion on the State Government to select any cases or offences for referral to a Special Tribunal and, in doing so, strips the accused of the protections ordinarily afforded by criminal law, which on its face is discriminatory. Justice Das further emphasized that the elimination of committal proceedings and of trial by jury under section 6, the denial of a de novo trial on transfer under section 7, the discretion given to the Special Court to refuse to summon a defence witness under section 8, the possibility of convicting an accused of a higher offence than originally charged under section 13, and the exclusion of interference by other courts through revision, transfer or section 491 of the Code under section 16, constitute glaring instances of inequality introduced by the impugned Act.

The Court observed that the impugned Act produced inequality before the law. Justice Chandrasekhara Aiyar explained that the provisions of the Act removed several safeguards that ordinarily protected an accused person. Specifically, the Act eliminated the preliminary inquiry that is normally conducted before a case is committed to the sessions court, abolished the right to trial by jury or the assistance of assessors, and denied the accused the opportunity of a fresh trial when a case was transferred from one court to another. All of these procedural safeguards were taken away for persons who were to be tried by a Special Court. Justice Bose added that the Act forced men accused of very serious offences to stand trial for their lives and liberty, selecting them from among their peers. He noted that although the new procedure might afford the accused a small amount of benefit, in the main it stripped them of substantial and valuable defence privileges that other similarly charged individuals could normally claim.

The Court stated that it would not examine the question raised by the State’s counsel as to whether the alleged discriminatory provisions had in fact been applied to the petitioner’s case. It had already observed that the discriminatory provisions obstructed the petitioner even after 26 January, preventing him from exercising any right to apply for bail, to seek transfer of the case, or to pursue revision. In the Court’s view, this fact alone was sufficient to conclude that the Regulation violated the equality guarantee of article 14 and was consequently void under article 13. The Court further held that the offending provisions could not be severed from the remainder of the Regulation. It was doubtful that the Military Governor would have issued the Regulation in its present form if those provisions had been removed, and to excise them would amount to the Court assuming legislative power to re-draft the Regulation. Considering the purpose and scheme of the Regulation, the Court found that removing the discriminatory clauses would destroy the integrity of the whole instrument and defeat its objective of expediting trials. Citing the Privy Council’s decision in Attorney-General for Alberta v. Attorney-General for Canada, the Court noted that when a part of a statute was held ultra vires and the remaining part could not function independently, the entire act was invalid. Accordingly, the Court declared the trial conducted under the Regulation to be void under article 13 read with articles 14 and 21 of the Constitution, ordered that the petitioner’s conviction and sentence be set aside, and directed that the petitioner be retried according to law. The order was made to apply to petition No 368 relating to the other petitioners.

In this case the Court noted that the constitutional questions raised in the present petitions were identical to those that had already been raised in the appeals filed by the same petitioners. It observed that those constitutional questions had been examined and finally determined in the course of the appeals, the parties having expressly consented to have the issues decided in that forum. Because the matters had already been finally resolved in the appeals, the Court concluded that there was no separate ground on which to entertain the petitions with respect to those constitutional points and therefore ordered that the petitions be dismissed. The Court further recorded that, with respect to the appeals, the majority of the judges had decided the constitutional issues against the appellant. The Court indicated that, following that determination, the remaining issues in the appeals would be dealt with at a later stage, namely when the appeals are ready for further hearing. Accordingly, the Court directed that the petitions be formally dismissed. The order also identified the legal representatives of the parties. The petitioners and appellants were represented by counsel described as Rajinder Narain, who acted as their advocate throughout the proceedings. The respondent was represented by counsel identified as G. H. Rajadhyaksha, who appeared on behalf of the State. The Court’s order therefore concluded the petition proceedings and set the stage for continuation of the appeals on the residual issues.