BASHESHAR NATH versus THE COMMISSIONER OF INCOME-TAX, DELHI & RAJASTHAN & ANOTHER.

November 19.

528

SUPREME COURT REPORTS

[1959] Supp.

BASHESHAR NATH

ti. THE COMMISSIONER OF INCOME-TAX, DELHI & RAJ ASTHAN & ANOTHER. (S. R. DAS, c. J., N. H. BHAGWATI, s. K. DAS, J. L. KAPUR a.nd K. SUBBA RAO, JJ.)

Income-tax-Evasion of taxation-Case referred tq Investigatio11 Commission-Comme11cement of the Constitution-Settlement of case -·-Constitutional, validity of-Waiver of fundamental right, if permis sible-Taxation of Income (Investigation Commission) Act, I947 (.JO of' I947l. s. BA-Constitution of India, Art. I4, Part III.

The two questions for determination in this appeal were, (r) whether a settlement under s. SA of the Taxation of Income (In vestigation Commission) Act, 1947 (30 of 1947) made after the commencement of the Constitution was constitutionally valid and (2) whether the waiver of a fundamental right was permissible under the Constitution. The appellant's case was on July 22, 194S, referred by the Central Government under s. 5(r) of the Act to the Investigation Commission for investigation and report. The Commission directed the authorised official under s. 6 of the Act to examine the appellant's accounts. He submitted his final report by the end of 1953· The Commission considered the report heard the assessee and came to the conclusion that Rs. 4,47,915 had escaped assessment. Thereupon the appellant on May 20, r954, applied to the Commission for a settlement of his case under s. SA of the Act, agreeing to pay Rs. 3,50,000 by way of "' tax and penalty at the concessional rate. The Commission re ported to the Central Government approving of the settlement, the Central Government accepted it and it was recorded by the Commission. The Central Government directed the recovery of the said amount under s. SA(2) of the Act. The appellant was permitted to make payments by monthly instalments of Rs. 5,000 and the total amount thus paid up to September S, 1957, aggre gated to Rs. I,2S,ooo. In the meantime the Income Tax Officer issued a certificate and certain properties of the appellant were attached. Relying on the decisions of this Court in Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri, [1955] 1 S.C.R. 448 and M. Ct. Muthiah v. The Commissioner of Income-tax, Madras, [1955] 2 S.C.R. 1247, the appellant applied to the Commissioner of Income-tax challenging the validity of the settlement made under s. SA of the Act on the ground that s. 5(r) of the Act on which it was founded had been declared void by this Court, and claimed that his properties might be released from attachment and the amount paid under the settlement might be refunded to him. On January 29, 195S, the Commissioner of Income Tax sent a reply to the appellant maintaining that the settlement was valid and

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that the appellant was bound thereunder to pay up the arrears of instalments and requesting him to continue to pay in future. Against this decision of the Commissioner of Income Tax the Bashesha, Natlt appellant came up to the Supreme Court by special leave. It was contended on behalf of the respondent that the Act laid down The Commissioner two distinct and separate procedures, one for investigation and of Income-ta,,, the other for settlement and it was the former alone and not the Delhi & Rajaslhan latter that was affected by the decisions of this Court and that the appellant by voluntarily entering into the settlement had waived his fundamental right founded on Art. 14 of the Constitu- tion.

& Another

v.

z95a

Held (Per Curiam), that both the contentions must fail. It was not correct to say that the Taxation of Income (In vestigation Commi&sion) Act, 1947, laid down two different procedures, one for investigation and assessment under s. 8(2) of the Act and another for settlement under s. SA of the Act and assessment in terms of such settlement and that while the deci sion of this Court in M. Ct. Muthiah v. The Commissioner of Income tax, Madras, declaring s. 5(1) of the Act to be discriminatory and therefore void, affected only the former procedure and not the latter. The Act laid down but one procedure and in entertaining a proposal for settlement as in the investigation itself the Com mission exercised the same jurisdiction, and powers and followed the one and the same procedllre as laid down by ss. 5, 6 and 7 of the Act. Since the settlement in the instant case was no excep tion to that rule, it was covered by the decision and must be held to be violative of Art. 14 of the Constitution.

M. Ct. Muthilllt v. The Commissioner of Income-tax, Madras,

[1955] 2 S.C.R. 12'47• applied.

The observations made in the majority judgment of this Court in Syed Qasim Razvi v. The State of Hyderabad, [1953] S.C.R. 589, must be kept strictly confined to the special facts of that case and had no application to the facts of the present case. Syed Qasim Razvi v. The State of Hyderabad, [1953] S.C.R.

589, held inapplicable.

Per Das, C. J., and Kapur, }.-There could be no waiver of the fundamental right founded on Art. 14 of the Constitution, and it was not correct to contend that the appellant had by entering into the settlement under s. SA of the Act, waived his funda mental right under that Article. Article 14 was founded on a sound public policy recognised and valued all over the civilised world, its language was the language of command and it imposed an obligation on the State of which no person could, by his act or conduct, relieve it. As it was not strictly necessary for the dis posal of this case, the question whether any other fundamental right could be waived need not be considered in this connection. Laxamanappa Hanumantappa Jamkhandi v. The Union of llldia, [1955] 1 S.C.R. 769; Dewan Bahadur Seth Gopal Das Mohta

6'/

530

SUPREME COURT REPORTS· [1959] Supp.

t

.

z958

p B

er hagwab and Subba Rao,

v. The Union of India, [1955] l S.C.R.:773; Baburao Narayanrao Sanas v. The Union of India, [1954] 26 l.T.R. 725; Subedar v. Basheshar Nath State, A.LR. 1957 All. 396 and Pakhar Singh v. The State, A.LR. 1958 Punj. 294, distinguished and held inapplicable.

v. The Commissioner .-There could be no waiver 1 1 D ~h· J;,'°;'~- at~ not only of the fundamental right enshrined in Art. 14 but i'lso ' ~ A ;i"' an of any other fundamental right guaranteed by Part III ofthe Constitution. The Constitution made no distinction between fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of the public policy. There could, therefore, be no justification ,for importing American notions or authority of decided cases to whittle down the transcendental character of those rights, conceived in public interest and subject only to such limitations as the Constitution had itself thought fit to impose.

JJ

.

0

"

"

Article 13(2) was in terms a constitutional mandate to the State in respect of all the fundamental rights enacted in Part III of the Constitution and no citizen could by waiver of any one of them relieve the State of the solemn obligation that lay on it. The view expressed by Mahajan, C. J., in Behram Khurshed Pesikaka v. The State of Bombay, [1955] l S.C.R. 613, correctly laid down the law on the point. Since the arguments in the instant case had covered the entire field of fundamental rights, there was no reason why the answer should be confined to Art. 14 alone.

Behram Khurshed Pesikaka v. The State of Bombay, [1955] l S.C.R. 613; State of Travancore-Cochin v. The Bombay Co., Ltd., [1954] S.C.R. n12 and The State of Bombay v. R. M. D. Chamar- . baugwala, [1957] S.C.R. 874, referred to. Per S. K. Das, J.-It seems clear that Art. 13 itself re cognises the distinction between absence of legislative power which will make the law made by an incompetent legislature wholly void, and exercise of legislative power in contravention of a restriction or check on such power, which will make the law void to the extent of the inconsistency or contravention; there fore the mere use of the word " void " in Art. 13 does not neces sarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of the Constitu tion.

Behram Khurshed Pesikaka v. The State of Bombay, [1955] l

S.C.R. 613, considered.

Bhikaji Narain Dhakras v. The State of Madhya Pradesh, [1955] 2 S.C.R. 589; M. Ct. Muthiah v. The Commissioner of Income-tax, Madras, [1955] 2 S.C.R. 1247 and The State >f Bombay v. R.M.D. Chamarbaugwala, [1957] S.C.R. 874, referred to.

There was nothing in the two preambles to the Indian and the American Constitutions that could make the doctrine of waiver applicable to the one and not to the other ; since the doctrine

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531

applied to the constitutional rights under the American Constitu- tion, there is no reason why it should not apply to the funda- mental rights under the Indian Constitution.

Case-law considered. But 1t must be made clear that there 1s no absolute rule, or

.

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one formulated in the abstract, as to the applicability of that D ~,.. ;c~m~-ta~ doctrine to fundamental rights and such applicability must de- pend on (I) the nature of fundamental right to which it is sought to be applied and (2) the foundation on the basis of which the plea is raised. The true test must be whether the fundamental right is one primarily meant for the benefit of individuals or for the benefit of the general public.

1 1 e ~ A ~~ast a" no er

z958

Basheshar Nath v. The Commissioner

Where, ~herefore, the Constitution vested the right in the individual, primarily intending to benefit him and such right did not impinge on the rights of others, there could be a waiver of such right provided it was not forbidden by law or did not con travene public policy or public morals.

As in the instant case the respondents who had raised the plea, had failed to prove the necessary facts on which it could be sustained, the plea of waiver must fail.

Per Subba Rao, ].-Apart from the question as to whether there could be a waiver in respect of a fundamental right, s. 5(1) of the Taxation of Income (Investigation Commission) Act, r947, having been declared void by this Court in M. Ct. Muthiah v. The Commissio11a of focome-tax, Madras, as being violative of the fundamental right founded on Art. I4 of the Constitution and such decision being binding on all courts in India, the Commis sioner of Income-tax had no jurisdiction to continue the proceed ings against the appellant under that Act and the appellant could not by a waiver of his right confer jurisdiction on him.

No distinction could be made under Art. r3(1) of the Con stitution between the constitutional incompetency of a legislature and constitutional limitation placed on its power of legislation, for a statute declared void on either ground would continue to be so, so long as the inconsistency continued. As the inconsistency of s. 5(1) of the Act with Art. 14 continued, it must continue to be void.

Keshav111; Madhava Mc11on v. The State of Bombay, [1951] S.C.R. 228; Bchram Khurshed Pcsikaka v. Stlltc of Bombay, [1955] 1 S.C.R. 613 and Bhikaji Narai11 Dhakras v. Stllte of Madhya Pradesh, [1955] 2 S.C.R. 589, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

208of1958.

Appeal by special leave from

the order dated January 29, 1958, of the Commissioner of Income-tax, Delhi & Rajasthan at New Delhi, under s. 8A(2) of the

532

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[1959] Supp.

Taxation on Income (Investigation Commission) Act, 1947.

Basheshar Nath Harnam Singh and Sadhu Singh for the appellant. v. K The Commissioner . of Income-tax, M. G. Seta.lv.ad, Attorney-Gener<!f. for India, G. Delhi & Rajasthan Daphtary, Solicitor-General of India, B. Sen and R.H.

·

& Another Dhebar for the respondents.

Das c. J.

A. G. Mitra and B. P. Maheshwari, for the inter

veners.

1958. November 19. The Judgment of Das, C.J., and Kapur, J., was delivered by Das, 0. J. Bhagwati, S. K. Das and Subba Rao, JJ., delivered separate judg ments.

DAS, C. J.-This appeal by special ]eave filed by one Shri Besheshar Nath hereinafter referred to as " the assessee " calls in question the validity of a settlement made under s. SA of the Taxation on Income (Investigation Commission) Act, 1947 (30 of 1947), hereinafter referred to as " the Investigation Act ". This Act, which came into force on May 1, 1947, by a notification issued by the Central Government under s. (1) (3) thereof, has had a short 1,rnt chequered career, as will appear from the facts hereinafter stated.

In order to appreciate the several questions canvass ed before us it is necessary to refer to the provisions of the impugned Act. Section 3 authorised the Central Government to constitute an Income Tax Investiga tion Commission (hereinafter called the Commission) and imposed on it the following duties :-

"(a) to investigate and report to the Central Government on all matters relating to taxation on income, with particular reference to the extent to which the existing law relating to, and procedure for, the assessment and collection of such taxation is ade quate to prevent the evasion thereof;

(b) to investigate in accordance with the provi sions of this Act any case or points in a case referred to it under section 5 and make a report thereon (in cluding such interim reports as the Commission may think fit) to the Central Government in respect of all or any of the assessments made in relation to the case

(1) S.C.R. SUPREME COURT REPORTS

533

before the date of its report or interim report, as the case may be." We may skip overs. 4 which dealt with the composi- tion of the Commission. Section 5, which is of import- The Commissioner ance was as follows:- of. Income.-tax, Delhi & Ra;asthan 6- Another

Basheshar Nath v.

z95B

Das C.J.

"5. (1) The Central Government may"at any time before the 30th day of June, 1948, refer to the Commis- sion for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a person has to a sub- stantial extent evaded payment of taxation on income, together with such material as may be available in support of such belief, and may at any time before the 30th day of June, 1948, apply to the Commission for the withdrawal of any case. or points in a case thus referred, and if the Commission approves of the with- drawal, no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn.

(2) The Commission may, after examining the material submitted by the Central Government with reference to any case or points in a case and making such investigation as it considers necessary, report to the Central Government that in its opinion further investigation is not likely to reveal any substantial evasion of taxation on income and on such report being ma.de the investigation shall be deemed to be closed.

(3) No reference made by the Central Government under sub-section (1), at any time before the 30th day of June, 1948, shall be called in question, nor shall the sufficiency of the material on which such a reference has been ma.de be investigated in any manner hy a.riy Court.

(4) If in the course of investigation into any case or points in a case referred to it under sub-section (1), the Commission has reason to believe-

(a.) that some person other than the person whose case is being investigated has evaded payment of taxation on income, or

(b) that some points other than those referred to

534

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[1959) Supp.

z95B

Das c .J.

Basheshar Nalh v.

it by the Central Government in respect of any case also require investigation, it may make a report to the Central Government The Commissioner stating its reasons for such belief and, on receipt of 0!. Incom'.·tax. such report, the Central Government shall, notwith Delh~ ~::,i:;•h•• st~nding anything cont~in.ed in s~b-sec~ion. (1), forth with refer to the Comm1ss10n for mvcst1gat10n the case of such other person or such additional points as may be indicated in that report." The date " 30th day of June, 1948 " appearing in sub-ss. (1) and (3) was, by Act 49 of 1948, substituted by the words " 1st day of September, 1948 ". Section 6 set out the various powers conferred on the Commis sion and s. 7 prescribed the procedure of the Com mission. It is not rtece~sary to set out the various powers and the details of the procedure in extenso and it will suffice to say that they have been considered by this Court and pronounced to be much more drastic and harsh than the powers to be exercised and the procedure to be followed by the income tax authorities acting under the provisions of the Indian Income Tax Act, 1922. The relevant portions of s. 8 ran as follows:-

" 8.

( l) Save as otherwise provided in this Act, the materials brought on record shall be considered by all the three members of the Commission sitting together and the report of the Commission shall be in accordance with the opinion of the majority. (2) After considering the report,

the Central Government shall by order in writing direct that such proceedings as it thinks fit under the Indian Income Tax Act, 1922, the Excess Profits Tax Act, 1940, or any other law, shall be taken against the person to whose case the report relates in respect of the income of any period commencing after the 31st day of December, 1938; and, upon such a direction being given, such proceedings may be taken and completed under the appropriate law notwithstanding the restric tions contained in section 34 of the Indian Income Tax Act, 1922, or section 15 of the Excess Profits Tax Act, 1940, or any other law and notwithstanding any lapse of time or any decision to a different effect given

(1) S.C.R. SUPREME COURT REPORTS

535

in the case by any Income tax authority or Income Tax Appellate Tribunal.

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

(3) ( 4} I;~ . ~ii. ~~~~~·~~~~t· ~; • ;~·-·~~~~~~~~~t

0

Basheshar Nath v. The Commission1; P~~~~~di~g~ v:~i 1;'o;;.;::e~an

& Another

Das C.].

taken in pursuance of a direction under sub-section (2), the findings recorded by the Commission on the case or on the points referred to it shall, subject to the provisions of sub-sections (5) and (6), be final; but no proceedings taken in pursuance of such direction shall be a bar to the initiation of proceedings under section 34 of the Indian Income Tax Act, 1922.

( 5)

(6)

..•.••••..••.•.•••.••.••....•...•..••.••••••.•••••.•••••.•••. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . ............................................................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................. . (7) Notwithstanding anything to the contrary contained in this Act or in any other law, for the time being in force, any evidence in the case admitted before the Commission or an authorised official shall be admissible in evidence in any proceedings directed to be taken under sub-section (2). ............................................................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . ....... . . . . . . . . . . . . . . . Section 9 barred the jurisdiction of Courts to call in question any a.ct or proceeding of the Commission or any authorised official appointed under s. 6. Section 10 gave power to the Central Government to make ·rules by notification in the official gazette.

(8)

On July 22, 1948, the case of the assessee was refer

red to the Commission in the following terms :- " Ministry of Finance (Revenue Division} New Delhi, the 22nd July, 1948. Under section 5 (1) of the Taxation on Income (Investigation Commission} Act, 1947, the cases of the following persons are hereby referred to the Investiga tion Commission for investigation and report, as the Central Government has prima facie reasons for believing that each such person has either alone or in combination with the other persons mentioned below, evaded payment of taxation on income to a. substan~ial

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[1959] Supp.

extent. The material available in support of such belief accompanies.

Basheshar Nath v.

No. The Commissione' - - - - - - - · - - - - - - EP. 829/1 829/2

of Income-tax, Delhi & Rajasthan & Another

Das C.J.

Na.me Beshasha.r Na.th and Co. Lala. Besha.sha.r Na.th. S d./-Pya.re La.I, Deputy Secretary, Ministry of Finance

(Revenue Division).

The Secretary, Income-tax, Investigation Commission, New Delhi."

It is not necessary to set out the a.nnexures that accompanied this order. It appears that the total wealth statement of the a.ssessee was filed on N ovem ber 10, 1948, and was forwarded to the authorised official. It also appears that from January 8, 1949, to October 14, 1949, the authorised official was engaged in the collection of assessment records of the assessee from the territorial income tax offices and of materials from the Civil Supplies Directorate regarding the assessee. In the meantime by s. 33 of Act 67 of 1949 the Act as the following section was inserted in s. SA:-

.

"SA. Settlenient i;f cases under investigation: (1) Where any person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him, the Com mission shall, if it is of opinion that the terms of the iii. the application may be settlement contained approved, refer the matter to the Central Government, and if the Central Government accepts the terms of such settlement, the Commission shall have the terms thereof recorded and thereupon the investigation, in so far as it relates to n:iatters covered by such settlement, shall be deemed to be closed.

(2) For the purpose of enforcing the terms of any settlement li'orrived at in pursuance of sub-section (1),

(1) S.C.R. SUPREME COURT REPORTS

537

v.

:c95B

the Central Government may direct that such pro- ceedings as may be appropriate under the Indian Bash•;har Nath Income-tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 1940 (XV of 1940), or any other law may be The Commis;ioner taken against the person to whom the settlement_ of lllcome-ta:r, relates, and in particular the provisions of the second Delhi & Rajastlum proviso to clause (a) of sub-section (5) of section 23, section 24B, the proviso to sub-section 2 of section 25A, the proviso to sub-section 2 of section 26 and sections 44 and 46 of the Indian Income-tax Act, 1922, shall be applicable to the recovery of any sum speci fied in such settlement by the Income 'fax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income-tax or an arrear of income-tax within the meaning of those provisions.

&- Another c 1 Das . .

(3) Subject to the provisions of sub-section (6) of section 8, any settlement arrived at under this section shall be conclusive as to the matters stated therein, and no person whose case has been so settled be entitled to re-open in any proceeding for the recovery of any sum under this section or in any subsequent assess ment or reassessment proceeding relating to taxation on income or in any other proceeding before any Court or other authority any matter which forms part of such settlement.

(4) Where a settlement has been accepted by Government under sub-section (1), no proceedings under section 34 of the Indian Income Tax Act, 1922 {XI of 1922), or under section 15 of the Excess Profits Tax Act, 1940 (XV of 1940), shall be initiated in res pect of the items of income covered by the settlement, unless the initiation of such proceedings is expressly allowed by the terms of the settlement." On July 5, 1949, the total wealth statement was received back from the authorised official. Our Con stitution ca.me into force on January 26, 1950. The order-sheet shows that the authorised official on May 26, 1950, issued a notice to the assessee fixing the hearing for June 10, 1950, which indicates that the authorised official was proceeding with the investiga tion set in motion by the reference of the assessee's

68

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1 958

I J

Dase.].

"-' AMther

Bashesha1' Nath v.

case to the Commission. The assessee a·ppears to have attended on June 6, 1950, with an application for extension oftimc which apparently was given. On ne commission" September 30, 1950, the assesseo Hupplicd certain state •/ Income-tax, ments of his firm. Tho entry in the order-sheet Ddhi & Rajasthan again8t the date October 31, 1950, shows that the assessee asked for further extension of time. There appears to be a hiatus of about 3 years and evident!.} nothing was done unti une 9, 1953, when the autho- rised official fixed the hearing of the case on June 15, 1953. The authorised official ·submitted his interim to the Commission on June 9, 1953. The report assessee was examined on October 9, 10 and 13, 1953, and the authorised official submitted his final report on October 19, 1953. On January 30, l954, notice was issued to the assessee to appear before the Com mission on February 15, 1954: Presumably to get ready for the hearing the assessee, on February 5, 1954, asked for inspection of certain assessment orders concerning his case, for the return of his lease deed filed by him and a copy of the statement of one L. Kalidas and for production of certain documents before the Commission. The hearing, which had been fixed for February 15, 1954, was adjourned till March4, 1954. Witness Kalidas was examined on March 4, 1954. On March 29, 1954, the assessee asked for a copy of the deposition given by the witness Durgadas before the Commission. After the evidence was closed notice was issued to the assessee on May l, 1954, asking him to appear before the Commission on May 19, 1954. On that date the assessee attended, argu. ments were heard and orders were reserved. Learned counsel for the assessee states that at the close of the arguments on May 19, 1954, the Commission announc ed its view that the income; profits and gains that had escaped assessment in the hands of the assessee for the period beginning with April I, 1939, a~d ending March 31, 1947, were .the sum of Rs. 4,47,915, that the Commission also threw a hint that should the assessee accept the said finding he would be granted the bene. fit of a settlement on the lower concessional basis of pa.yrncnt of 75% and a small penalty of Rs. 14,064

/

(1) S.C.R. SUPREME COURT REPORTS

-539

Ir

-

I95B

Das C. ].

"" Another

Basheshar Nath v.

and that in the ciroumstances the assessee had no other alternative than to make the best of the bad 3'ob by proposing a settlement under s. SA offering to pay Rs. 3,50,000 by way of ta! and penalty. This sequ- ne Commi;sionc1· ence of events is amply borne out by paragraphs 3 of Income-lax, and 4 of the settlement application filed by the asses'>ce Delhi & Rafastli'"' on May 20, 1954, a copy of which has been produced before us by the ref!pondents .. The Commission on Jhay 24, 1954, made a report under s. SA (1) to the Central Government that it was of opinion that the terms of settlement contained in the application might be approved. The Central Government having accept ed the proposed settlement, the Commission ha.d the terms thereof recorded. The Central Government by its Order C No. 74 (9-IT) 54 made on ,July 5, 1954, under s. SA (2) of the Investigation Act directed that demand notice in accordance with the said terms k served immediately by the Income Tax Officer and that all s11ch other proceedings under the Indian Income Tax Act or other law aa may be necessary be taken with a view to enforce the payment of the demand and that the entire sum of Rs. 3,50,000 be demanded in one sum. It appears, however, that the assessee was allowed to make payments by instal ments of Rs. 5,000, per month.

In the meantime on May 28, 1954, this Court deli judgment in Suraj Mall Mohta and Co. v. vered A. V. Visvanatha Sastri (1 In that case in the course ). of investigation of the case of Messrs. Jute·11,nd Gunny Brokers Ltd. which had been referred to the Commis sion under s. 5 (1) of the Investigation Act, it was alleged to have been discovered by the Commission that Suraj Mall Mohta and Co. had made large profits which .they had not disclosed and had thus evaded taxation. A report to that effect having been made on August 2S, 1953, by the Commission to the Central Government under s. 5 (4) of the Investigation Act the Central Government on September 9, ~953, referr ed the case against Suraj Mall Mohta and Co. to the Commission under the provisions of s. 5 (4). On Sep tember 15, 19"53, the Commission notified Suraj Mall

(1) [1955] I S.C.R. 448.

540

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[1959] Supp.

I958

D

•

f

h

. v.

J •

as C •

· •

,o;. Anoth" C

Mohta and Co. that their cases had been referred for Basheshar Nath investigation and called upon them to furnish certain materials, details of which were set out in annexure to The Commissioner the petition. Ou April 12, 1954, Suraj Mall Mohta of Income-tax, and Co. filed a petition under Art. 32 of the Constitu D,Jhi &- Rajasthan ti on asking for an appropriate writ restraining the d k" omm1ss10n rom ta mg any action on t e groun that the provisions of the Investigation Act had become void being discriminatory in character. By that judgment this Court held that both s. 34 of the Indian Income Tax Act, 1922, as it then stood, and sub-s. (4) of s. 5 of the Investigation Act dealt with persons who had similar. characteristics of being per sons who had not truly disclosed their income and had evaded payment of tax on their income but that as the procedure prescribed by the Investigation Act was than the procedure substantially more prejudicial under the Indian Income Tax Act, 1922, sub-s. (4) of s. 5 and the procedure prescribed by the Investigation Act., in so far as it alfec.ted persons proceeded age.inst undt'r that sub-section was a piece of discriminatory legislation which offended the provisions of Art. 14 of the Constitnt.ion and was, therefore, void and unen forceable.

Sub-section (4) of s. 5 of the Investigation Act hav ing been declared void, Parliament passed the Indian Income Tax Amendment Act (33 of 1954) amending s. 34 of the Indian Income Tax Act, 1922. Paradoidcal as it may seem, the result of this amendment was that persons who originally fell only within the ambit of s. 5 (1) of the Investigation Act and formed a distinct class of substantial tax evaders also came within the amended s. 34 of the Indian Income Tax Act, 1922. The position after the amendment, therefore, was that the Income Tax Officers could pick out some of these per sons and refer their cases under s. 5 (1) of the Investi gation Act and thereby subject them to the drastic and harsh procedure of that Act, w bile they could deal with other persons similarly situate under s. 34 as amended and apply to t.hem the comparatively more beneficial procedure laid down in the Indian Income Tax Act, 1922. Promptly several applications were

(1) S.C.R. SUPREME COURT REPORTS

541

-

r958

Das C. ].

& Another

Bashesha. Nath v.

made under Art. 32 of the Constitution complaining that after the amendment of s. 34 of the Indian Income Tax Act, s. 5 (1) of the Investigation Act became dis- criminatory in that the persons falling within it could The comtnissioner be dealt with under the drastic, prejudicial and harsh of Income-tax, procedure pt·escribed by the Investigation Act, while Delhi & Rajasthan other persons similarly situate and belonging to the same category cou]d at the whim or pleasure of the Income Tax authorities be proceeded against under the more beneficial procedure prescribed under the Indian Income Tax Act. All tftose applications were disposed of by a common judgment reported as Shree Meenakshi Milla Ltd,. v. Sri A. V. Visvanatha Saatri (1 ) This Court held that s. 34 of the Income Tax Act, as amended by the Indian Income Tax Amendment Act, 1954 (33 of 1954), operated on the same field ass. 5 (1) of the Investigation Act, and, therefore, s. 5 (1) had become void and unenforceable as the pr-0cedure applied to persons dealt with thereunder became dis criminatory in character. It should be noted that in none of those petitions disposed of by that judgment had any assessment been made under the Investiga tion Act and this Court only prohibited further pro ceedings before the Commission under the Investiga tion Act. The assessee appellant now before us who had entered into a settlement under s. 8 of the Inves tigation Act and had been assessed in accordance with the terms of the settlement continued to pay the tax by monthly instalments of Rs. 5,000 as before.

Finally on December 20, 1955, came the decision of this Court in M. OT. Muthiah v. The Com missioner of Income Tax, Madras (2 ). In that case the Central Government had under s. 5 (1) of the Investigation Act referred the case to the Commission. The Commission after holding an enquiry recorded its that an aggregate sum of findings Rs. 10,07,322-4-3 represented the undisclosed income during the period under investigation. The Commis sion having submitted its report to the Central Govern ment, the latter acting under s. 8 (2) of the Investiga tion Act directed that appropriate action under the

held

and

(I) [1955] I 5, C. R. 787.

(2) [1955] 2 S. C. R. 1247.

542

SUPREME COURT REPORTS

[1959] Supp.

& Anoth"

Das c. ].

Indian Income Tax Act, 1922, be taken against that assessee with a view to assess or re-assess the income Bas/..,ha• Nath which had escaped assessment for the period 1940-41 Th' Cm:,;,ission" to 1948-49. The Income. Tax Officer accordingly issued notices and made the re-assessment for the of 1""me-tax. Delhi & Ilajaslhan years 1940-41, 1941-42 and 1943-44 to 1948-49 based upon the finding of the Commission, which was treated as final and conclusive. These assessment orders wore served on that assessee. There was, however, no re assessment order for the year 1942-43. In regard to the assessment orde&> which had been served the assesseo concerned applied to the Commissioner of Income Tax under s. 8 (5) of the Investigation Act for ·reference to the High .Court on questions of law arising out of those re-assessment orders. During the penden cy· of those proceedings the assessee, in that case on December 6, 1954, filed a petition contending that the provisions of the Investigation Act were illegal, ultra vires and unconstitutional. The majority of this Court held that different persons, though falling under the same class or category of substantial evaders of income tax, were being subjected to different procedures, oue a summary and drastic procedure and the other the normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed by the Investi gation Act and, therefore, the assessments made under s. 8 (2) were void and unenforceable. That was a case in invitum after an of assessment under s. 8 (2) the Investigation Act. The investigation under assessee appellant before us, who had at the end of the investigation entered into a settlement and been assessed in accordance with the terms of such settle ment, however, went on making payments in discharge of the balance due under the terms of settlement right up to September 8, 1957, when he made the last pay ment of Rs. 8,000 bringing the aggregate payment up to Rs. 1,28,000.

In the meantime the Income Tax Officer had sent a certificate requesting the Collector of Delhi for the recovery of the balance due by the assessee under the settlement. In execution of that certificate some of

tl) S.C.R. SUPREME COURT REPORTS

543

-

i958

Das C. ].

&- Another

Basheshar N alh v.

the properties belonging to the assessee situate in Dharamsalla and Hissar were attached. On Decem- ber 27, 1957, the assessee made an application to the Income Tax Commissioner. After pointing out that The Commissioner between July 5, 1954, and December 27, 1957, the of Inconie-ta:e, petitioner had paid in all Rs. 1,28,000 towards the Delhi &- Rajasthan discharge of his liability under the settlement and referring to the decisions of this Court in Suraj Mall ) and Muthiah's case (2)the assessee sub- Mohta's case (1 mitted that the settlement under s. 8A of the Investi gation Act had no force and did not bind the petitio ner and that the settlement had been made under the pressure of the situation and in view of the coercive machinery of the Investigation Act and that from either point of view the settlement was not binding. His contention was that when s. 5(1) of the Investiga tion Act had been held unconstitutional the settlement under s. 8A could not be enforced, for the foundation of the proceedings under s. 8A was the reference under s. 5(1) and the foundation having crumbled down the superstructure must fall with it. Under the circum stances the assessee submitted that the attached pro perties be released aud the amount already recovered under the settlement be refunded. On January 29, 1958, the Income Tax Commissioner sent the following communication to the assessee :-

No. L-228(1)/54-55/17590 Office of the Commissioner of Income Tax,

Delhi and Hajasthan, New Delhi.

Dated, New Delhi the 29th January, 1958.

Shri Besheshar Nath, 9, Barakhamba Road, New Delhi. Dear Sir,

Sub :-Taxation on Income (Investigation Com mission) Act, 1947-0rder u/s 8A(2)-Your petition dated 27th December, 1957.

With reference

to your petition dated 27th December, 1957, regarding the settlement arrived at

(1) (1955).1 S.C.R. 418.

(2) (1955) 2 S.C.R. 12.17.

544

SUPREME COURT REPORTS

[1959] Supp.

'958

under section 8A(2) of the Ta.xa.tion on Income (Inves- B•sh"""' Nath tiga.tion Commission) Act, 1947, I a.m to inform you

v.

that the settlement is vs.lid a.nd binding on you.

2. You a.re, therefore, requested to ma.ke good Tho Commissioner 01. 1..,,._., • ., a.rrea.rs of insta.lments which you have not pa.id re. Delho 6- Ra1asthan cently by 5th Februa.ry, 1958, a.nd a.lso to continue l · 6- Another t e msta. · ma. mg t e pa.yments m a.ccor a.nee wit Dos c. J. ments scheme a.greed to, fa.iling which the recovery proceedings will be vigorously pursued through the usual recovery cha.nnels.

· h h

k"

h

d

·

Your's fa.ithfully,

Sd./· S. K. Gupta., Commissioner of Income-tax, Delhi & Ra.jasthan, New Delhi.

Being aggrieved by the above decision the a.ssessee thereupon moved this Court and obtained specie.I leave to appeal against tha.t order. The appeal ha.s now come up for final disposal before us.

It may be mentioned here that as the respqndents are anxious to have the matters of controversy raised in this appea.l decided and set at rest by a decision of this Court, the respondents, for the purposes of this a.ppeal, have not insisted on their objection that an appea.l does not lie under Art. 136 of the Constitution against an order of the Commissioner of Income Ta.x. Learned counsel for the a.ssessee a.Iso has not -pressed his claim for refund of the a.mounts already paid a.nd has pressed the appeal regarding the balance that remains to be pa.id under the settlement which is cha racterised as invalid. Model Knitting Industries Ltd. which has a case pending in the High Court of Ca.lout. ta where the same questions a.a a.re in issue in the appeal before us, a.re also in issue has been permitted to intervene· and we have heard counsel a.ppea.ring for tha.t intervener.

In view of the three decisions referred to a.hove learned Attorney General does not seriously contend that the powers conferred on the Commission by s. 6 and the procedure la.id down by s. 7 of the Investiga. tion Act are not discriminatory, but wha.t he urges is that none of the said decisions has held that s. 5(1) ill

..

(I) S.C.R. SUPREME COURT REPORTS

545

,

-

8

.

.

fi

h

1958

• at,.

asnesnar

& Another

Das c. J.

• N v.

wholly void and inoperative. He says that s. 5(1) only authorises the Centre.I Government to refer certain U h , C cases to t e omm1ss1on. pon sue a re erence two lines of procedure are clearly indicated by the Investi- The commissioner gation Act, namely, (I) that an investigation may be of Income-tax, held in invitum following the procedure prescribed Delhi & Rajasthan and exercising the powers conferred by the Investiga. tion Act and (2) that a settlement may be made under s. 8A. If the first procedure is followed and an assess- ment is made under s. 8(2) such assessment will un- doubtedly be invalid as has been held in Muthiah's case (1 ), but if on a case being referred the settlement procedure is followed then the consequential order of assessment under s. 8A cannot be questioned. We are unable to accept this line of argument as permissible in view of the provisions of the Investigation Act. It will be recalled that when the case of the assessee was referred to the Commission under s. 5( I) on July 22, 1948, there was no provision for settlement in the Act at all. Therefore, that reference, when it was made, consigned the assessee to the only procedure of investi- gation that was then prescribed by the Act. In the next place it should be remembered that after s. 8A was added in the Investigation Act by s. 33 of Act 67 of 1949 an authorised official was appointed under s. 6(3) to investigate the affairs of the assessee and to examine the books and to interrogate any person or obtain any statement from any person and under sub-s. (4) the authorised official was empowered to exercise the same powers as had been vested in the Commission under sub-ss. (1) and (2) of s. 6. :Further, by its own terms s. 8A made it clear that the person concerned in any case referred to the Commission for investigation might apply to the Commission at any time during such investigation to have the case settled. Therefore this provision for settlement was an integral part of the entire investigation procedure. It was not a separate or independent procedure apart from the investigation procedure. It is true that there was nothing to prevent the assessee from straightaway

(1) [1955] 2 S.C.R. 1247. 69

546

SUPREME COURT REPORTS

[1959] Supp.

.

ld

1958

eiore

itself.

th C

& Anoth" Das c. J.

. e omm1ss10n cou

th "t' ax au or1 1es, u

making a proposal for settlement before any actual step towards investigation was taken by the Income Bash.,ha, Nath T b t b " f re er The c0 :;.ission" the proposal for settlement to the Central Government it had to be satisfied that the terms of settlement con of Income-ta., Delhi & Rajasthan tained in the application were such as might be approved. For the purpose of satisfying itself the Commission had obviously to go into the facts either by itself or through an authorised official and to con sider the materials collected by the authorised official and in the process of doing so had to hold an investi gation of some sort and that investigation had neces sarily to be made in accordance with the procedure prescribed by the Investigation Act It is, therefore, not correct to say that there could be a pro ceeding for settlement without any investigation at all. In our opinion s. SA did not provide. for a separate procedure at all. When a case was referred under s. 5(1) it was really for investigation and a settlement was something which could crop up in the process of that investigation just as in the course of a suit parties may arrive at some compromise. In recording the compromise and passing a judgment in accordance with the compromise thereof, the court exercises the same jurisdiction as it exercises in entertaining and disposing of the suit itself. Likewise in entertaining a proposal for settlement the Commission exercised its jurisdiction of investigation under s. 5, followed the procedure prescribed by s. 7 and exercised all its powers under s. 6. As already stated the language of s. SA itself shows that a settlement can be proposed only during such investigation. judgment, therefore, the contention of the learned Attorney Gene ral that the Investigation Act prescribed two proce dures is not well-founded.

In our

Learned Attorney General then points out that the Investigation Act was a pre-Constitution Act and that before the commencement of the Constitution when there was no such thing as a fundamental right, its provisions could not be questioned however discri minatory the procedure may have been. He urges that the the commencement of the Constitution after

(1) S.C.R. SUPREME COURT REPORTS

547

8

1 9'

v.

& ~ther Das c. J.

laid down by the

Investigation Act, but Basheshar Nath

assessee has not been subjected to the coercive pro- cedure voluntarily proposed a settlement which was accepted by the Central Government on the recommendation of The Commissioner the Commission. In that situation he was in the same of Income-tax, position as Qasim Razvi had been in and the observa- Delhi & Rajasthan tions to be found in the judgment of Mukherjea, J., who delivered the majority judgment in Syed Qasim ) applied to the Razvi v. The State of Hyderabad (1 present appeal. We do not think it is necessary, for the purpose of this appeal, to go minutely into the facts of Qasim Razvi's case (1) with reference to whioh the observations relied on had been made, or to analyse the correctness of the reasoning adopted in that case, for that can only be done by a larger Bench. We are definitely of opinion, however, that the observations made in the majority judgment should not be extended but must be kept strictly confined to the special facts of that case. In our judgment those observations have no application to the facts of the present appeal before us, for here even after the commencement of the Con- stitution, the process of investigation continued in that the authorised official went on collecting materials by following the procedure prescribed by s. 7 and exercis- ing the powers conferred on him by s. 6 of the Investigation Act.

The last argument advanced by the learned Attorney General is that if there had been a breach of the assessee's fundamental right by subjecting him to a discriminatory procedure laid down in the Investiga tion Act, the assessee, by voluntarily entering into a settlement, must be taken to have waived such breach and cannot now be permitted to set up his funda Immediately two questions arise for mental right. consideration, namely; (1) whether the assessee could waive the breach of the fundamental right in question and (2) whether in the facts and circumstances of this case he had actually done so.

Re. (1): In Behram Khurshed Pesikaka v. State of ) there was a general discussion whether a

Bombay (2

(1) (1953] S.C.R. 589. (2) (1955] 1 S.C.R. 613.

548 SUPREME COURT REPORTS

[1959) Supp.

z95B

fundamental right could be waived. At page 638

B•sheshar Nalh Venkatarama Aiyar, J., observed:-

v.

sr

h

h

f h Le · I

b Anolher Das c. J.

" The question is, what is the legal effect of a Th• Commi"io"" statute being declared unconstitutional. The answer of. Incom~-tux, to it depends on two considerations,-firstly, does the Delhi b Ra1asthan constitutional prohibition which fias been infringed auect t e competence o t e g1s ature to enact t e law or does it merely operate as a check on the exercise of a power which is within its competence; and secondly, if it is merely a check, whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it would be a nullity. That would also be the position when a limitation is imposed on the legislative power in the interests of the public, as, for instance, the provisions in Chapter XIII of the Constitution relating to inter-State trade and commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely unenforce able. Such an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled. (Vide Cooley on Constitu tional Limitations, Volume I, pages 368 to 371; Willis on Constitutional Law at pages 524, 531, 542 and 558; Rottschaefer on Constitutional Law at pages 28 and 29-30)." After referring to three decisions of the American Supreme Court which a.re also now relied on by the learned Attorney General, the learned Judge concluded as follows :--

" The position must be the same under our Con stitution when a Jaw contravenes a. prescription intend ed for the benefit of individuals. The rights guaranteed under Art. 19 (1) (f) a.re enacted for the benefit of owners of properties and when a law is found to infringe that provision, it is open to any person whose rights have been infringed to waive it and when there

(1) S.C.R. SUPREME COURT REPORTS

549

i958

h h N h as esv~' at

is waiver there is no legal impediment to the enforcCl- ment of the law. It would be otherwise if the statute 8 was a nullity; in which case it can neither be waived nor enforced. If then the law is merely unenforceable The commissioner and can take effect when waived it cannot be treated of Income-ta:., as non est a.nd as effaced out of the statute book. It is Delhi & Rajasthan scarcely necessary to add that the question of waiver is relevant to the present controversy not as bearing on any issue of fact a.rising for determination in this case but as showing the nature of the right declared under Art. 19 (1) (f) and the effect in law ofa statute contravening it." When the case came up before the court on review Mahajan, C. J., with the concurrence of Mukherjea., Vivian Bose, and Ghula.m Hassan, JJ., said at page 653:-

Das C.}.

" In our opinion, the doctrine of waiver enunciat ed by some American Judges in construing the Ameri can Constitution cannot be introduced in our Constitu tion without a fuller discussion -of the matter. No _inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights con ferred by Pa.rt III of our Constitution. We think that the rights described as fundamental rights are a neces sary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political ; liberty of thought, expression, belief, faith and worship; equality of status and of oppor tunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in con sidering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.

550 SUPREME COURT REPORTS

[1959] Supp.

8

v.

'9'

Reference to some of the Articles, inter alia, Arts. 15 Basheshar Nath (1), 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State " You The Commissioner can discriminate '', or get convicted by waiving the of Income-tu, protection given under Arts. 20 and 21." .

n t at occasion one o us pre1erre not to express any

f opinion on this subject and said at page 670 :-

d

"

Delhi & Rajasthan O h c;. Anothe ' Da_s c. J.

"In coming to the conclusion that I have, I have in a large measure found myself in agreement with the views of Venkatarama Aiyar, J., on that part of the case. I, however, desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment, particularly those relating to waiver of unconstitutionality, the fundamental rights being a mere check on legislative power or the effect of the declaration under Art. 13(1) being "relat ively void". On those topics I prefer to express no opinion on this occasion." It will, however, be noticed that the observations of the learned judges tnade in that case did not relate to the waiver of a breach of the fundamental right under Art. 14.

The fundamental right, the breach whereof is com plained of by the assessee, is founded on Art. 14 of the Constitution. The problem, therefore, before us is whether a breach of the fundamental right flowing from Art. 14 can be waived. For disposing of this appeal it is not necessary for us to consider whether any of the other fundamental rights enshrined in Part III of our Constitution can or cannot be waived. We take the view that this court should not make any pronouncement on any question which is not strictly necessary for the disposal of the particular case before it. We, therefore, confine our a tten ti on to Art. 14 and proceed to discuss the question on that footing.

Article 14 runs as follows:-

" The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." It is the first of the five Articles grouped together under the heading " Right to Equality". The under lying object of this Article is undoubtedly to secure to

,,

(1) S.C.R. SUPREME COURT REPORTS

551

.

v.

t

"t

x95B

th

. h"

. d' t"

of I11cotne-1ax,

& Another _ Das c. 1.

eny o any person wit m 1 s JUr1s 1c 10n

all persons, citizens or non-citizens, the equality of status and of opi;artunity referred to in the glorious Basheshar Nath preamble of our Constibution. It combines the English doctrine of the rule of law and the equal protection The Commissioner clause of the 14th Amendment to the American Fede- ral Constitution which enjoins that no State shall Delhi & Rajasthan -"d I e equa protection of the laws ". There can, therefore, be no doubt or dispute that this Article is founded on a sound public palicy recognised and valued in all civi- lised States. Coming then to the language of the Arti- cle it must be noted, first and foremost that this Arti- cle is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles_ e.g., Art. 19, do. The obligation thus imposed on the State, no doubt, enures for the benefit of all persons, for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the Article is directed to the State and the reality of the obligation thus im posed on the Stat-e is the measure of the fundamental right which every person within the territory of India is to enjoy. 'fhe next thing to notice is that the bene fit of this Article is not limited to citizens, but is avail able to any person within the territory of India. In the third place it is to be observed that, by virtue of Art. 12, "the State" which is, by Art. 14, forbidden to discriminate between persons includes the Govern ment and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Arti cle 14, therefore, is an injunction to both the legisla tive as well as the executive organs of the State and the other subordinate authorities. As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Art. 13. Clause (1) of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so

552

SUPREME COURT REPORTS

[1959) Supp.

v.

z958

Das C.J.

& Another

far as ·they are inconsistent with the provisions of Basheshar Nath Part III shall, to the extent of the inconsistency be void. Likewise cl. (2) of this Article prohibits the Th• Commission" State from making any law which takes a.way or . •! Income-I•"· abridges the rights conferred by the same Pa.rt and Delhi & Rajastha• follows it up by saying that any law made in contra- vention of this clause shall, to the extent of the con travention, be void. It will be observed that, so far as this Article is concerned, there is no relaxation of the restriction imposed by it such as there are in some of the other Articles, e.g., Art. 19, els. (2) t.o (6). Our right to equality before the law is thus completely and without any exception secured from all legislative discrimination. It is not necessary, for the purpose of this appeal to consider whether an executive order is a " law " within the meaning of Art. 13, for even with out the aid of Art. l3 our right to the equal protection of the law is protected against the vagaries, if any, of the executive Government also. In this connection the observations of Lord Atkin in Eahugbayi Eleko v. Officer Administering the Government of Nigeria (') are apposite. Said his Lordship at page 670 that in accordance with British jurisprudence no member of the executive can interfere with the liberty or proper ty of a British subject except when he can support the legality of his act before a. court of justice. That apart, the very language of Art. 14 of the Constitution expressly directs that "the State", which by Art. 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus Art. 14 protects us from both legis lative and executive tyranny by way of discrimina tion.

Such being the true intent and effect of Art. 14 the question arises, can a breach of the obligation imposed on the State be waived by any person ? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so ? If the Constitution asks the State as

. (1) L.R. [1931] A.C. 662.

., .4 ., '

' ; I

(1) S.C.R. SUPREME COURT REPORTS

553

d

& Another

Basheshar Nath

I do not think the of Income-tax,

to why the State did not carry out its behest, will it be any answer for the State to make that " true, you directe me not to deny any person equality before the law, but this person said that I could do so, for he The co.::.~issioner had no objection to my doing it." State will be in any better position than the position Delhi & Rajasthan in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear, on the language of Art. 14 that it is a com- mand issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and oppor- tunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. What- ever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conf~rred on him by this constitu- tional mandate directed to the State.

Das C. ],

The learned Attorney General has relied on various passages in text-books written by well-known·aud emi nent writers, e.g., Cooley, Willoughby, Willis and Rottschaefer and on eight American decisions. In considering the statements of law made by American writers and judges the following observations of Patanjali Sastri, C. J., in The State of Travancore-Co chin and others v. The Bombay Co. Ltd. (1 ) should con stantly be borne in mind :-

" These clauses a.re widely different in language, scope and purpose, and a varying body of doctrines and tests have grown around them interpreting, ex tending or restricting, from time to time, their opera tion and application in the context of the expanding American commerce and industry, and we are of opinion that not much help can be derived from them

(I) [1952] S.C.R. III2, II20, II2I.

70

554

SUPREME COURT REPORTS

[1959] Supp.

'958

Das c. J.

Basheshar Nath v.

in the solution of the problems arising under Art. 286 of the Indian Constitution." (See also The State of Bombay v. R.M.D. Ohamarbaug- Tlie Commission" wala (1 ) ). The American authorities cited by the 01 Income-tax, Attorney General relate to waiver of obligations under Delh~ ~ R;{•sthan a contract, of the deprivation of right to property ..:'.. " without due process of law or of the constitutional right to trial by jury and the like. They have no bearing on the question of the waiver of the equal protection clause of the 14th Amendment which, like our Art. 14, is a mandate to the State. It is signifi cant that no American decision is forthcoming which upholds the waiver of the breach of that clause. When a case of breach of any of the fundamental rights akin to what are dealt with in the American authorities will come before us it will, then, be the time for us to discuss those authorities and to consider their applicability in the matter of the interpretation of the corresponding provisions of our Constitution. For the moment we prefer to confine our observations to a consideration of waiver of the breach of the fundamental right under Art. 14.

Learned Attorney General has relied on three deci sions of this Court: (1) Laxmanappa Hanumantappa Jamkhandi v. The Union of India('), (2) Dewan Baha dur Seth Gopal Das Mohta v. The Union of India(') and (3) Baburao Narayanrao Banas v. The Union of India(') in support of his thesis that a breach of Art. 14 may well be waived by a person. In ndne of those cases, all of which were disposed of on the same day (October 21, 1954) was the question of waiver specifically or seriously discussed. As learned counsel appearing for the intervener points out, the first of the above mentioned cases proceeded on the footing that as ~rt. 265 was not a fundamental right conferred by Part III, it could not be enforced under Art. 32. Learned counsel for the intervener further submitted that the decision in the 2nd case mentioned above could also be explained on that basis and on the fur ther ground that proceeding under Art. 32 was not

(I) [I957) S.C.R. 874. 918. (3) (t955) 1 S.C.R. 773.

(2) [1955) I S.C.R. 769. (4) [1954) 26 I.T.R. 725.

(1) S.C.R. SUPREME COURT REPORTS

555

.

.

:r958

Th e

intended to be' used for obtaining relief against the voluntary action of a. person and that appropriate B h h N h asesar at l f remedy for recovery o money ay m a suit. v. decision in the 3rd case proceeded on the same basis The commissioner and did not carry the matter any further. It is of Income-tax, impossible to treat any of those decisions as represent- Delhi 6- Rajasthan ing the considered opinion of this Court on the question of waiver of a breach of the fundamental right under Art. 14 of the Constitution. Reference was also made by the learned Attorney General to the decision of a Single Judge of the Allahabad High Court in Subedar v. State (1 ) where it was held that Art. 20(3) conferred merely a privilege and that such privilege could always be waived. It was overlooked that if a person volun- tarily answered any question then there was no breach of his fundamental right at all, for the fundamental right is that a person shall not be compelled to incri- minate himself. That case, therefore, is not a case of waiver at all. The case of Pakhar Singh v. The State (2 ) is also, for the same reason, not a case of waiver.

Das c. J.

6- Another

-

Re. (2) : The answer to this question depends upon facts which have not been properly investigated. The appeal is against the order of the income tax autho rities which order makes no reference to the plea of waiver. Further the filing of the statements of caMe having been dispensed with, we have not had the benefit of the statement of facts on which this plea is said to be founded. The view taken on question (1), however, relieves us of the necessity of going into this question.

On a consideration of the nature of the fundamental right flowing from Art. 14, we have no doubt in our mind that it is not for a citizen or any other person who benefits by reason of its provisons to waive any breach of the obligation on the part of the State. We are, therefore, of the opinion that this appeal should be accepted, the order of the Income Tax Commissioner, Delhi, dated January 29, 1958, should be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5, 1954,

(1) A. I. R. 1957 All. 396. (2) A. I. R. 1958 Punj. 294.

556 SUPREME COURT REPORTS

[1959] Supp.

•

J

h

rd

Das, J ., rn rega

should be quashed and that the assessee appellant should get the costs of this appeal.

Basheshar Nath v. BHAGWATI, J.-I agree with the reasoning adopted The Commissioner of. Incomc_-ta•, and the conclusion reached in the judgments prepared Delhi & Ra;a;than by M v Lord the Chief Justice and my brother S. K. ' f h & Another to t e u tra v1res character o t e Bhagwali 1. proceedings adopted under s. 8-A of the Taxation on Income (Investigation Commission) Act, 1947 (30 of 1947), and the void character of the settlement reached thereunder. As regards the parts of the judgments which deal with the question whether a fundamental right guaranteed by the Constitution can be waived at all, I find myself in agreement with the judgment prepared by my brother, Subba Rao, J., and am of the opinion that it is not open to a citizen to waive the fundamental rights conferred by Part III of the Constitution.

1

·

The question of waiver came to be argued before us in this way. If the proceedings and the settlement under section 8-A of the Act were void as aforesaid, the respondent contended that the appellant had waived the fundamental right enshrined in Art. 14 of the Constitution and was therefore not. entitled to challenge the settlement. This was only by way of reply to the contention of the appellant and was not set out in proper details in any affidavit filed on behalf of the respondent. The learned Attorney-General, however, relied upon the application made by the appellant before the Investigation Commission and the contents thereof as also the payments made by the appellant from time to time both before and after the pronouncement of our decision in M. Gt. Muthiah v. The Commissioner of Income-tax, Madras (1 ) in order to support this plea of waiver and the arguments before us proceeded on that basis. No objection was taken by either of the parties before us to the issue of waiver being decided on such materials and the question was argued at considerable length before us. The argu ments moreover extended to the whole field of funda mental rights and were not confined to Art. 14 only.

(1) [1955] 2 s. c. R. 1247.

(1) S.C.R. SUPREME COURT REPORTS

557

B

.

Ig58

We, therefore, see no reason why vre should refrain from pronouncing our opinion on that question.

C

A

bl

13

rt.

an

Th

Bhagwati ]. ·

asheshar Nath

s. Anoth•r

d h t e

e , pream e to our onst1tut10n,

. language in which the fundamental rights have been The co,;;~issioner enacted lead to one conclusion and one conclusion of Income-tax, only that whatever be the position in America, no Delhi s. Rajasthan distinction can be drawn here, as has been attempted in the United States of America, between the funda- mental rights which may be said to have been enacted for the benefit of the individual and those enacted in public interest or on grounds of public policy. Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. The limita- tions on those rights have been enacted in the Consti- tution itself, e.g., in Arts. 19, 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitu- tion, there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the funda- mental rights enshrined in Part III of our Constitu- tion.

The genesis of the declaration of fundamental rights in our Constitution can be traced to the following passage from the Report of the Nehru Committee (1928):-

" Canada, Australia and South Africa ba ve no declaration of rights in their Constitutions but there are various articles to be found in the Constitution of the Irish Free State which may properly be grouped under the general head "fundamental rights". The reason for this is not far to seek. Ireland is the only country where the conditions obtaining before the treaty were the nearest approach to those we have in India. The first concern of the people of Ireland was, as indeed it is of the people of India to-day, to secure fundamental rights that have been denied to them. The other dominions had their rise from earlier British

558

SUPREME COURT REPORTS

[1959] Supp.

z958

Ba,heshar Nath v.

settlements which were supposed to have carried the h thfeEm. l Iredland. wash taken a~d law of Englanhd wit 1 ng an agamst er own will kept under t e ru e o The Commi<Sioner and the acquisition of dominion status by her became of Income-tax. a matter of treaty between the two nations. We con. Delhi & Raja,than ceive that the constitutional position in India is very & Another much the same. That India is a dependency of Great Britain cannot be denied. That position can be altered in one of two ways-force or mutual consent. It is the latter in furtherance of which we are called upon to recommend the principles of a constitution for India. In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances."

Bhagwali ].

.

-

At the Round Table Conference that preceded the making of the Government of India Act, 1935, there fore, the Indian leaders pressed for a Bill of Rights in the proposed Constitution Act, in order to bind the administration with certain ·declarations of individual rights. This was, however, rejected by the Simon Commission with these observations :

"We are aware that such provisions have been inserted in many Constitutions, notably in those of the European States formed after the War. Experience, however,. has not shown them to be of any great prac tical value. Abstract declarations are useless unless there exist the will and means to make them effec tive."

The framers of our Constitution however followed the American view represented by the famous words of Jefferson in preference to that expressed by tho Simon Commission : -

"The inconveniences of the declaration are, that it may cramp government in its useful exertions. But the evil of this is short-lived, moderate and reparable. The inconveniences of the want of a declaration are permanent, aftiictive and irreparable. They are in constant progression from bad to worse. The executive in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread .................. "

(1) S.C.R. SUPREME COURT REPORTS

559

(Vide Ba.su's Commentary on the Constitution of India, Vol. 1, p. 74). and incorporated the fundamental rights in Part III of our Constitution.

The object sought to be achieved was as the pre-

z958

Basheshar Nath v. The Commissioner of. Incom•.-ta"·

JUSTICE

amble to the Constitution states " to secure to all its Delln & Ra;asthan ' "t' ' l c1 izens : , soma , economic an po i ica ; LIBERTY . of status and of opportunity; . and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation": and Art. 13 provided :-

& Another Bhagwati J

l"t'

d

l

" 13. (1) All laws in force in the territory of India immediately before the commencement of this Con stitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

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

"Laws in force" were defined in Art. 13(3) to

include:

"Laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not pre viously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas·" and they were declared void, in so far as they were inconsistent with the provisions of this Part, to the extent of such inconsistency. As regards laws to be enacted after the commencement of the Constitution, the State, in the wider significance of the term as including " the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Govern ment of India " (Vide Art. 12) was enjoined not to make any law which takes away or abridges the rights conferred by this Part and any law made in con travention of this clause was to the extent of the

560 SUPREME COURT REPORTS

[1959] Supp.

v.

z95a

contravention declared void. It will be seen that the Basheshar Nath prohibition was thus effeotive both against past laws as well as future laws and both were equally void in Th• commission., so far as they were " inconsistent with " or "in deroga tion of " the fundamental rights enshrined in Part III o/ Ineome-tax, Delhi & Rajasthanof the Constitution. No distinction was made between the past laws and future laws in this respect and they & Another Bhagwati J. were declared void to the extent of the inconsistency or the extent of the contravention aR the case may be, leaving the unoffending parts thereof untouched.

It will be also seen that under Art. 13(2) an admoni tion was administered to the State not to enact any law which takes away or abridges the rights conferred by this Part and the obligation thus imposed on the State enured for the benefit of all citizens of Bharat alike in respect of all the fundamental rights enacted in Part III of the Constitution. No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy.

The question then arises whether a breach of the obligation thus imposed on the State can be waived by a citizen. To borrow the words of My Lord the Chief Justice "In the face of such unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the Constitutional mandate merely because a citizen told the State that it may do so ? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that "True, you directed me not to take away or a.bridge the rights conferred by this Part, but this citizen said that I could do so, for he had no objection to.my doing so." I do not think the State will be in any better position than the position in which Ad~m found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit." It is absolutely clear on a perusal of Art. 13(2) of the Constitution that it is a constitutional mandate

(1) S.C.R. SUPREME COURT REPORTS

561

v.

r95B

to the State and no citizen can by any act or conduct relieve the State of the solemn obligation imposed Basheshar Nath on it by Art. 13(2) and no distinction can be made at all between the fundamental rights enacted for the The Commissioner benefit of the illdividual and those enacted in the of Income-tax, ·public interest or on grounds of public policy.

(Vide pp. 638-643 of the Report).

W~at then is the basis of this distinction which has

Delhi & llajasthan .;;. Another been strenuoiwly urged before us that there are certain Bhagwati 1. fundamental rights which are enacted only for the private benefit of a citizen, e.g., rights of property, which can be waived by him and there are other fundamental rights enacted for the public good or as a matter of public policy which it would not be open to a citizen to waive even though he were affected by the breach thereof. Reliance is placed in this behalf on certain decisions of the Supreme Court of the United States of America, passages from Willoughby, Willis and Rottschaeffer quoted in the judgment ofT. L. Venkatararna Aiyar, J., in Behram Khurshed Pesikalca v. The State of Bombay (1) and the observations of the said learned Judge in that case adopting the said I am distinction. afraid this distinction cannot be accepted. There is nothing in the terms of the various a.rticles embodying the fundamental rights in Part III of our Constitution which warrants such a distinction. The fundamental rights are enacted with all precision and wherever limitations on their exercise are thought of they are also similarly enacted. Such constitutional limitations are to be found within the terms of the articles them- selves and there is no justification for reading in the terms of the articles anything more than what is expressly stated therein. There is further this distinc- tion between the American Constitution and ours that whereas the American Constitution was merely enact- ed in order to form a more perfect union, establish tranquillity, provide for justice, common defence, promote the general welfare and secure the blessings of liberty and was an outline of government and nothing more, our Constitution was

insure domestic

(r) (1955] r S.C.R. 613.

71

562

SUPREME COURT REPORTS

[1959] Supp.

1958

Bashesh(Jr Nath v.

enacted to secure to all citizens, Justice, Liberty, Equality and Fraternity and laid emphasis on the welfare state and contained more detailed provisions, The Commission" defining the rights and also laying «;fown restrictions thereupon in the interest of the general welfare, etc. of Income·tax. Delhi & Rajasthan As observed by Willis in his Constitutional Law at

t

& Anoth"

Bl•agwati J.

p. 477 : -

"The conflict between man and the state is as old as human history. F'or this reason some com promise must be struck between private liberty and pnblic authority. There is some need of protecting personal liberty against governmental power and also some need of limiting personal liberty by govern mental power. The ideal situation is a 11rntter of balancing one against the other, or adjusting conflict ing interests."

"In the United States Constitution an attempt has been made to strike a proper balance between personal liberty and social control through express limitations written into the Constitution and interpret ed by the Supreme Court, by implied limitations created by the Supreme Court, ana by the develop ment of the governmental powers of regulation, taxa tion, and eminent domain by the Supreme Court." (Ibid pp. 4 77-4 78), whereas our Constitution has expressly sought to strike the bahuice between a written guarantee of individual rights and the collective interests of the community by making express provisions in that behalf in Part III (Vide Gopalan v. State of of the Constitution. Madras)(').

Moreover in the matter of considering the state in ments of law made by the text book writers America and the dicta of the judges of the Supreme Court there in the various decisions cited before us, we must bear in mind the following admonition of Patanjali Sastri, C. J., in the State of 1'ravancore-Cochin v. The Bombay Co., Ltd. (').

"These clauses are widely different in language, scope and purpose, and a varying body of doctrines

(1) [1950] S.C.R. 88.

(2)

[1952] S.C.R. IJ12, 1120.

(1) S.C.R. SUPREME COURT REPORTS

563

d

t'

1958

th

e expan mg

a.nd tests have grown a.round them interpreting, extend- ing or restricting, from time to time, their operation 8 • 1. h t f t . aln an a pp ica ion m t e con ex o American commerce and industry, and we are of The commission•r opinion that not much help can be derived from them of Income-tax, in the solution of the problems arising under Art. 286 D1lm ,i;. Rajas1Aat1 of the Indian Constitution " or for the matter of that, articles embodying the fundamental rights in Part III of our Constitution (See also The State of Bombay v. R. M. D. Ohamarbau,g- wal.a) (1

.s. Ano1h .. BhaKVJ41i 1.

" N v.

as,ies ar

d'

).

,

The rights conferred on citizens may be thus classi fied: (i) statutory rights; (ii) constitutional rights; and (iii) fundamental rights. One need not consider the statutory rights in this context but the constitu tional rights are those created and conferred by the Constitution. They may or may not be waived by a citizen, as stated in the text books and the decisions of the Supreme Court of the United States of America above referred to. But when the rights conferred are put on a high pedestal and are given the status of funda mental rights, which though embodied in the Constitu tion itself are in express terms distinguished from the other constitutional rights (e.g., fundamental rights which are enshrined in Part III of the Constitution and are enacted as immune from any legislation in consistent with or derogatory thereto and other con stitutional rights which are enacted in other provisions, for instance in Arts. 265 and 286 and in Part XIII of the Constitution), they are absolutely inviolable save as expressly enacted in the Constitution and cannot be waived by a citizen. The Constitution adopted by our founding fathers is sacrosanct and it is not per missible to tinker with those fundamental rights by any ratiocination or analogy of the decisions of the Supreme Court of the United States of America. The only manner in which that can be done is by appro priate amendment of the Constitution and in no other manner whatever.

There is no difficulty whatever in working out this position and to my mind the difficulties pointed out

(1)

[1957] S.C.R. 874, 918.

564 SUPREME COURT REPORTS

[1959] Supp.

v.

f

h"

r95B

.

th

&- Another Bhagwati 1,

Janakhandi v. Union of India (3

are more imaginary than real. If a citizen wanted to Basheshar Nath assert his fundamental right under the circumstances envisaged for instance in the judgment of my brother The Commi,,ioner S. K. Das, J., and made an application for a writ under of Income-tax. Art. 32 or Art. 226 of the Constitution he would be Delhi&· Rajasthunpromptly confronted with the argument that the Court f . a· h . Id . h s on m im t e e exermse o its 1soret10u re use relief prayed for. The remedy is purely discretionary and no Court in those circumstances would exercise its discretion in his favour (Vide Dewan Bahadur Seth Gopal Das Mohta v. Union of India (1 ), Baburao Narayan Savas v. Union of lndia( 2 ) and Laxmanappa Hoonmantappa ). Even then he might merely obtain a relief declaring the legislation ultra vires the Constitution and the Court would not grant him any consequential relief. For to approach the regular that relief he would have courts of law, when all questions of law, apart from the mere constitutionality of the provision would be considered by the Court on a contest between the par ties, e.g., estoppel, acquiescence, limitation and the like (Compare our observations in Sales Tax Officer, Bana ras v. Kanayalal Mukundlal Saraf(')). The only thing which parties would be concluded by would be the adjudication as to the u.ltra vires character of the measure in question and the citizen would not be en titled to the relief claimed merely for the asking. These considerations, therefore, do not militate against the position that a citizen cannot waive the fundamental rights conferred upon him by Part III of the Constitu tion.

I fully endorse the opinion expressed by Mahajan, C. J., in Behram Khursheed Pesikaka v. The State of Bombay(') at page 653 :-

.

"'\Ve think that the rights described as funda mental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute lndia into a

(') [1955] l S.C.R. 773· (3) [r955J I S.C.R. 769. (4) Civil Appeal No. 87 of 1957 decided on September 23, 1958. (5) [1955] I S. C. R. 613.

(2) [1954] 26 l.T.R. 725.

(1) S.C.R. SUPREME COURT REPORTS

565

959

r

sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty Basheshar Nath of thought, expression, belief, faith and worship ; equality of status and of opportunity. These funda- The Commissioner mental rights have not been put in the Constitution of Income-tax. merely for individual benefit, though ultimately they Delh~ ~ R~{asthan come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a mat- ter of constitutional policy."

no er Bhagwari J.

v.

S. K. Das].

This, in my opinion, is the true position and it cannot therefore be urged that it is open to a citizen to waive his fundamental rights conferred by Part III of the Constitution. The Supreme Court is the bul wark of the fundamental rights which have been for the first time enacted in the Constitution and it would be a sacrilege to whittle· down those rights in the man ner attempted to be done.

The result is however the same and I agree with the

order proposed by My Lord the Chief Justice.

S. K. DAS, J.-This is an appeal by special leave from an order dated January 29, 1958, passed by the Commissioner of Income-tax, Delhi, respondent no. l before us, in circumstances which are somewhat un- usual and out of the ordinary. We shall presently relate those circumstances; but at the very outset it may be stated that two questions of far-reaching importance fall for consideration in this appeal. One is the validity of a settlement made under s. SA of the Taxation on Income (Investigation Commission) Act, 1947 (30 of 1947) hereinafter referred to as the Act, after the coming into force of the Constitution on January 26, 1950, and the second is if a fundamental right guaranteed by the Constitution can be said to have been waived by the appellant in the circumsta- nces of this case.

The appellant before us is Basheshar Nath, whom we shall hereafter call the assessee. As we have already stated, the Commissioner of Income-tax, Delhi, is the first respondent. The second respondent

566

SUPREME COURT REPORTS

[1959] Supp.

r95s

is the Union of India. We also allowed the Model Knitting Industries, a limited liability Company with h h h •t Bas es ar Nath a cutta, to mtervene m t e 1 s reg1stere o ce m v. T~e Commissioner appeal, on the ground that the intervening Company of Income·tax, has a case pending in the High Court of Calcutta Delhi & Rajasthanwhere the same questions are in issue. We have also

· C 1

ffi

d

·

·

·

& Another

s. ic-:;;,, J.

heard the intervener in support of the appeal.

On behalf of the appellant it has been contended that the Commissioner of Income-tax, Delhi, is a tribunal within the meaning of Art. 136 of the Con stitution and exercised judicial functions when it pas sed the impugned order of January 29, 1958. The respondents pointed out, however, that the so-called order was nothing but a reply which respondent no. 1 gave to a communication received from the assessee. However, the respondents have waived any prelimi nary objection to the maintainability oft.he present appeal, and the learned Attorney General appearing for the respondents has frankly stated before us that he is raising no such preliminary objection, as the Union Government is equally anxious to have a decision on the question, very important from its point of view and with far-reaching financial consequences, as to whether a settlement made under s. SA of the Act after January 26, 1950, and the orders passed thereon by the Union Government are valid. We have, therefore, proceeded on the footing that the present appeal is competent, and have considered it unnecessary to decide in the abstract the more general question as to the circumstances in which an order made by a revenue authority like the Commissioner of Income-tax partakes of the character of a judicial or quasi-judicial order.

•

Now, for the facts and circumstances which have led up to this appeal. The Act received the assent of the Governor-General on April 18, 1947, and came into force on May 1, 1947. On July 22, l!J48, the case of the assessee was referred to the Investigation Commission, constitued under s. 3 of the Act. The reference was made under s. 5(1) of the Act, and it stated that the Central Government had prima f acie reasons for believing that the assessee either alone or

(1) S.C.R. SUPREME COURT REPORTS

567

8

v.

Z9$

"0 er s. K. Das J.

in combination with other persons evaded p11.yment of taxation on income to a substantial extent, and Bashesllar Na11i therefore the case of the assessee was sent to the Investigation Commission for investigation and report. Tlte Cort1missioner The period of investigation was from April 1, 1939 to of_ 1ncome_-1a,., March 31, 1947. The report of the Investigation Com- Dil.11~ ~ 11:iasi1u ... mission which has been made available to us shows that the ca.se against the assessee was that he carried on a. business of supplying tents, executing contract works, and commission agency for some textile mills on a fairly extensive sea.le, both individually and in partnership wit,h his brother. It appears that the total wealth statement of the assessee was filed on November 10, 1948, and was forwarded to an autho- rised official appointed under s. 6(3) of the Act. From January 8, 1949 to October 14, 1949 the authorized official was engaged in the collection of assessment records of the assessee from the income-t&x autho- rities and of materials from the Civil Supplies Direc- torate. On July 5, 1949, the total wealth statement was received back from the assessee and the order- sheet shows that on May 26, 1950, (that is, after the coming into force of the Constitution) the authorised official issued a notice to the assessee fixing the hear- ing for June 10, 1950. The assessee then asked for time, and it appears that for a period of a.bout three years till June, 1953, nothing was done. Thereafter, the authorised official held a preliminary investigation and computed intially that the undisclosed income in question was of the assessee for Rs. 12,07,000; on further scrutiny and examination of accounts and after hearing the assessee's explana- tion, the authorised official reduced the amount in his final report, submitted sometime towards the end of 1953, to Rs. 9,56,345. The Investigation Commission considered the report of the authorised official, heard. the assessee, and came to the conclusion that the total amount to be assessed in the hands of the assessee was Rs. 4,47,915. In their report dated May 24, 1954 the Investigation Commission said :

the period

" During the course of the hearing before us, the assessee as well as his Auditors applied for a.

568

SUPREME COURT REPORTS

[1959] Supp.

•958

v.

settlement after admitting liability for the aforesaid Bashesha• Nath sum. In the circumstances, we consider it proper to allow the assessee the benefit of a settlement on the The Commissfone. lower concessional basis of 75% of evaded income of I-come-tax, payable by way of tax and a moderate penalty of Rs. Delhi & Rajasthan 14,064 ....... The assessee accepting our findings .both as regards the amount of income that escaped assess & Another s. I<. Das J. ment and the amount of tax and penalty payable, In the circumstances, we re offered a settlement. commend the acceptance by the Government of the assessee's offer of a settlement." The Central Government, accepted the settlement under s. SA of the Act and on July 5, 1954, passed an order under s. 8A(2) directing the issue of a demand notice by the Income-tax Officer concerned for a sum of Rs. 3,50,000 (including the penalty of Rs. 14,064) on the assessee and further directing that "all such other proceedings under the Indian Income-tax Act or under any other law, as may be necessary, should be taken with a view to enforcing the payment of the demand and the terms and conditions of settlement." Though under the terms of settlement no instalments were given, it appears that the assessee was allowed to pay the amount at the rate of Rs. 5,000 per month. · It further appears that up to and includ ing September 8, 1957, the assessee had paid in all a sum of Rs. 1,28,000 towards In December, 1955 was given the decision of this Court in M. GT. Muthiah v. The' Commissioner of Income tax, Madras ('), in which the majority of Judges held that s. 5(1) of the Act was ultra vires the Con stitution, as it was discriminatory and ·violative of the fundamental right guaranteed by Art. 14 of the ·Constitution by reason of two amendments which were made in s. 34 of the Indian Income-tax Act, 1922-one in 1948 by the enactment of the Income tax and Business Profits Tax (Amendment) Act, 1948 (48 of 1948) and the other in 1954 by the enactment of the Indian Income-tax (Amendment) Act, 1954 (33 of 1954). Sometime earlier than the aforesaid deci sion, the Income-tax Officer concerned had sent a

the demand.

<•> [1955] 2 s.c.R. 1247.

(1) S.C.R. SUPREME COURT REPORTS

569

t'

1

't

rgj8

ca e

t h ·

lS proper 1es s1 ua e m

recovery certificate to the Collector, New Delhi, and the assessee stated that in execution of the said certi- d Beuheshar Nal11 t d · · Dh aramsa a an fi Hissar were attached. On December 27, 1957, the The c0:;,,,ssiot1u assessee filed a petition to the Income-tax Commis- sioner, Delhi, in which after stating the relevant Delhi 6- Rajasthan facts, the assessee claimed that, after the decision in Muthiah's case (1), the settlement made under s. SA of the Act had no force and was not binding on him : the assessee then prayed that the attached properties should be released from attachment and the amounts recovered under the terms of settlement refunded to him. On January 29, 1958, the Commissioner of Income-tax sent the following reply-

s. K. Das J.

of Income-ta1,

6- Another

" With reference to your petition dated 27th December 1957 regarding the settlement arrived at under section 8A{2) of the Taxation on Income (In vestigation Commission) Act, 1947, I am to inform you that the settlement is valid and binding on you;

2. You are, therefore, requested to make good the arrears of instalments which you have not paid recently by 5th :February, 1958 and also to continue making the payments in accordance with the instal ments' scheme agreed to, failing which the recovery proceedings will be vigorously pursued through the usual recovery channels." The assessee asked for and obtained special leave from this Court on February 17, 1958, to appeal from In the appeal as orginally filed the aforesaid order. in pursuance of the special leave granted to the assessee, the prayer portion was inadvertently left out. Subsequently, the assessee prayed that-(a) the report of the Investigation Commission dated May 24, 1954, be quashed, (b) the settlement made on the basis of the report and the directions given by the Central Government in pursuance thereof and the proceedings for recovery of arrears of tax be all quashed, and (c) the amounts already recovered may be ordered to be refunded. With regard to the last prayer, we may state here that it was not pressed before us and we !lore relieved from the task, at least in this appeal, of

(1) (1955] 2 S.C.R. 1247.

I

570

SUPREME COURT REPORTS

[1959] Supp.

z95B.

deciding in what circumstances and on what con- siderations a refund of tax voluntarily paid can be

v.

Bash.,har Nath claimed. The Commission" Therefore, the first and foremost question before us is the validity of the settlement made under s. 8A of of Income-tax.

Delhi &- Rajastha• the Act. On behalf of the. assessee the main argu o;. Another ment is thats. 5(1) of the Act having been hel.d ultra s. K--:;;,,, J. vires the Constitution, the very foundation for the report of the Investigation Commission has disappeared and a settlement based thereon is ne\ther valid, nor can it be enforced. On behalf of the respondents, the learned Attorney General has contended that there is no decision of this Court which has held thats. 5(1) of the Act is wholly void and on a proper construc tion of the various sections of the Act, it will be found that there are two separate and distinct procedures or jurisdictions which the Investigation Commission may follow or exercise: one is investigation and the other relates to settlement. He h::is submitted that the jurisdiction conferred on the Investigation Com mission under s. SA, which was inserted in the Act in 1949 by s. 33 of Act 67 of 1949, is not affected by the decision in Muthiah's case ('), and if the Investi gation Commission had jurisdiction to entertain an application from the a.ssessee for settlement, approve of the same, and refer it to the Central Government, the latter had also jurisdiction to accept it under sub s. (l) and make necessary orders under sub-s. (2) of s. SA. In short, the argument of the learned Attorney General is that there is nothing in Muthiah's deci sion ('), which renders s. SA constitutionally invalid. It is necessary to read at this stage the relevant provisions of the Act in so far as they bear upon the problems before us. 'Ve have said that the Act came into force on May 1, 1947. This was before the com ing into force of the Constitution of India, .and no question of the violation of any fundamental rights guaranteed by the Constitution arose on that date. Section 3 of the Act empowers the Central Govern ment (now Union Government) to constitute a Com mission to be called the Income-tax Investigation

(1) [1955] 2 S. C. R. 1247.

\

(1) S.C.R. SUPREME COURT REPORTS

571

Commission, whose duties shall be (to quote the words of the section)-

"(a) to investigate a.nd report to the Central

z95B

Basheshar Nath v.

Government on all matters relating to taxation on The Commissioner income, with particular reference to th':l extent to which of In&ome-ta,,, the existing law relating to, and procedure for, the Delhi & Rajasthan h t assessmen au co ect1on o sue to prevent the evasion thereof;

6- Another s. K. Das J.

11

t"

t

f

.

d

t . d axa ion is a equa e • (b) to investigate in accordance with the provi sions of this Act any case or point in a case referred to itunder section 5 and make a report thereon (including such interim reports as the Commission may think fit) to the Central Government in respect of all or any of the assessments made in relation to the case before the date of its report or interim report, as the case may be." We are concerned in this appeal with the duty of the Commission referred to ins. 3(b) above. Section 4 deals with the composition of the Commission, details whereof are unnecessary for our purpose. Sub-sec tions (1), (2) and (4) of s. 5 a.re relevant to the problems before us and must be read :

"5(1). The Central Government may at any time before the lst day of September 1948 refe1· to the Com mission for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a. person has to a sub stantial extent evaded payment of taxation on income, together with such material as may be available in support of such belief, and may at any time before the 1st day of September, 1948 apply to the Commission for the withdrawal of any case or points in a case thus referred, and if the Commission approves of the with drawal, no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn.

(2) The Commission may, after examining the material submitted by the Central Government with reference to any case or points in a case and making such investigation as it considers necessary, report to the Ccntrai Government that in its opinion further investigation is not likely to reveal a.ny substantial

572

SUPREME COURT REPORTS

(1959) Supp.

evasion of taxation on income and on such report B•shesh•r Nalh being made the investigation shall be deemed to be

closed.

v. The Commissione,.

Delofh.1:'0Rm~-•·1"h·

1 ~ •J•S an cl> ·Anoth"

(3) .............................................................. . (4) If in the course of investigation into any case l) ' ' ,

to 1t un er su -sect10n (

or pomts m a case re1erre the Commission has reason to believe-

d

b

d

·

,.

'

S. J(. Das ].

• (a) that some person other than the person whose case is being investigated has evaded payment of taxation on income, or

(b) that some points other than those referred to it by the Central Government in respect of any case also require investigation,

it may ·make a report to the Central Government stating its reasons for such belief and, on receipt of such report, the Central Government shall, notwith standing anything contained in sub-section (I), forth with refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report." Section 5 as originally enacted mentioned the date 30th of June, 1948, but by Act 49 of 1948 the date substituted was "lst day of September, 1948 ". Sec tion 6 states the powers of the Commission, and they may be summarised thus:

(a) the Commission has power to require any per son or banking or other Company to give information on relevant points;

(b) it has power to administer oaths and all the powers of a civil court to take evidence, enforce the attendance of witnesses etc;

(c) it has power to impound and retain a docu

ment in its custody;

(d) it has power to ask an authorised official to

examine accounts ancl interroga:te any person ;

(e) it has power to give directions to an authori8-

ed official ;

(f) it has power to close the investigation ancl make a best of judgment assessment in respect of a person who refuses or fails to attend in person, to give evidence or p~oduce documents etc ; and

(I) S.C.R. SUPREME COURT REPORTS

573

(g) it has power of seizure, search etc. in certain

z958

specified circumstances.

Sections 6A and 6B deal with the power of the Com-

Basheshar Nath v.

mission to tender immunity from, prosecution and to The Commissioner withdraw such tender. Section 7 states the procedure of Income-tax, to be followed bv the Commission, sub-ss. (2), (4) and Delhi & Rajasthat1 d d• (6) whereof nee on y e re erre

h to ere:

& Another

l b

£

s. K. Das J.

"7(2) In making an investigation under clause (b) of section 3, the Commission shall act in accordance with the principles of natural justice, shall follow as far as practicable the principles of the Indian Evidence Act, 1872 (I of 1872), and shall give the person whose case is being investigated a reasonable opportunity of rebutting any evidence adduced against him ; 1 and the power of the Commission to compel production of documents shall not be subject to the limitation impos- ed by section 130 of the Indian Evidence Act, 1872 (I of 1872}, and the Commission shall be deemed to be a court and its proceedings legal proceedings for the purpose of sections 5 and 6 of the Bankers' Books Evi- dence A~it, 1891 (XVIII of 1891).

(3) .............................................................. . (4) No person shall be entitled to inspect, ca.ll for, or obtain copies of, any documents, statements or papers or materials furnished to, obtained by or pro duced before the Commission or any authorised offieial in any proceedings under this Act; but the Commis sion, and after the Commission has ceased to exist such authority as the Central Government may in this behalf appoint, may, in its discretion, allow such ins pection and furnish such copies to any person :

Pl'ovided that, for the purpose of enabling the person whose case or points in whose case is or arc being investigated to rebut any evidence brought on the record against him, he shall, on application ma.de in this behalf and on payment of such fees as may be prescribed by Rules made under this Act, be furnished with certified copies of documents, statements, papers a~1d materials brought on the record by the Commis s10n.

(5) ............................................................. .

574 SUPREME COURT REPORTS

[1959) Supp.

1

d ·

1958

· h

th t "t ·

d or reg\ster

upon apedny ocmn~nt nedo ,":'it at&n mg

(6) In any proceedings under this Act, the Com- mission may, in its discretion, admit in evidence and t a 1 1s not adct .

Bashedar Nalh v. n. c0 ,..,,,;,,;0 . , , u y stam of INco .. e-lu, Section 8 states in effect what the Commission shall do D1IM cS- Rajaslha" on the conclusion of the investigation : it states that .s- .. boiher the materials brought on the record shall be consider s, K. n., 1. ed by all the members, and the report shall be in accordance with the opinion of the majority. Sub section (2) of s. 8 gives the Central Government power to direct reopening of asseBSment proceedings on the report of the Commission. Sub-section (4) states that in the assessment or reassessment proceedings in pursuance of a direction given under sub-1. (2), the findings recorded by the Commission shall be final, subject to the provisions of sub-ss. (5) and (6). Then comes s. 8A which must be quoted in full:

"S. SA(l) Where any person concerned in any case referred to or pending before the Com~ission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him, the Com mission shall, if it is of opinion that the terms of the settlement contained in the application may be approv ed, refer the matter to the Central Government, and if the Central Government accepts the terms of such settlement, the Commission shall have the terms the ro of recorded and thereupon the investigation, in so far as it relates to matters covered by such settlement, shall be deemed to be closed.

(2) For the purpose of enforcing the terms of any settlement arrived at in pursuance of sub-section (1), the Central Government may direct 'that such proceedings as may be appropriate under the Indian Income-tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 19.0 (XV of 1940) or any other law may be taken against the person to whom the settlement rela tes, and, in particular, the provisions of the second proviso to clause (a) of sub-section (5) of section 23, section 24B, the proviso to sub:section (2) of section 25A, the proviso to sub-section (2) of section 26 and sections 44 and 46 of the Indian Income-tax Act, 1922

{I) S.C.R. SUPREME COURT REPORTS

575

shall be applicable to the recovery of any sum speci- tied in such settlement by the Income-tax Officer 8 • .,.,.,.,,, Naill having jurisdiction to assess the person by whom such sum is pa.ya.hie as if it were income-tax or an arrear T/11 co,,,,,,;,.;011•r of income-t.a.x within the meaning of those provisions.

of 1 .. c0Me-1as,

'"'

v.

(3) Subject to the provisions of sub-section (6)D'111~ ~ R~~·s111a,.

"0 s. K. D•s J.

"

of section 8, any settlement arrived at under this section shall be conclusive as to the matters stated therein, and no person w bo11e cue ha.a been 80 aettled !!!hall be entitled to reopen in any proceeding for the recovery of any sum under this aection or in any subsequent assesssment or reasse88ment proceeding relating to taxa.t.ion on income or in any other proceed- ing before any court or other authority any matter which forms part of such settlement.

(4) Where a settlement has been accepted by Government under sub-section (1), no proceedings under section 34 of the Indian Income-tax Act, 1922 (XI of 1922), or under section 15 of the Excess Profits Tax Act, 1940 (XV of 1940), shall be initiated in res pect of the items of income covered by the settlement unless the initiation of such proceedings is expressly allowed by the terms of the settlement." Section 9 bars the jurisdiction of courts, but it is not disputed that if any of the provisions of the Act are ultra vires the Constitution, s. 9 will neither cure the defect nor stand in the way of the asse88ee. Section 10, the la!lt section, gives the Central Government power to make rules.

The above recital gives a brief conspectus of the main provisions of the Act. It is necessary now to refer to a few earlier decisions of this Court with regard to some of these provisions. The earliest in point of time is the decision .in Suraj Mall Mohta and Go. v. A. V. Viswanatha Sastri (1 ), where sub-s. (4) of s. 5 of the Act and the procedure prescribed by the Act in 80 far as it affected the persons proceeded against under that sub-section, were held to be discriminatory and therefore void and unenforceable. No opinion wa.s, however, expressed on the validity of 8. 5(1) of the Act.

(1) [1955] I S.C.R. 448.

576

SUPREJIIE COURT REPORTS

[1959] Supp.

,

v.

•958

S. !(,Das

& Another

In Skree Meenakshi Mills Ltd., Madurai v. Sri A. V. Basheshar Nath Viswanatha Sastri {'),it was held that after the coming into force on July 17, 1954, of the Indian Income-tax The Commission" (Amendment) Act, 1954, (33 of 1954) which operated of Income-ta~. on the same field ass. 5(1) of the Act, the provisions Delhi & Rajasthanof s. 5 (l) became void and unenforceable as being discriminatory in character. It was further held that J when an Act was valid in its entirety before the date of the Constitution, that part of the proceedings regu lated by the special procedure and taken during the pre-Constitution period could not be questioned how ever discriminatory it might have been, but the dis criminatory procedure could not be continued after the coming into force of the Constitution. In that case (Meenakshi Mills' case (1 ) ) the Investigation Commis sion had not even commenced the proceedings though a period of seven yea.rs had elapsed and the investi gation was pending when the writ petitions were filed. In those circumstances it was held that the ·proceed ings before the Investigation Commission which had become discriminatory could no longer be continued. Then came the decision in M. OT. Muthiah v. The Commissioner of Income-tax, Madras (2 ). The facts relevant to that decision were that the Investigation Commission held an enquiry into three cases and submitted a report on August 26, 1952, finding a particular sum to be the undisclosed income during the investigation period. The Central Government accepted the report and passed an order. under s. 8(2) of the Act on September 16, 1952. Notices under s. 34 of the Indian Income-tax Act were then issued and reassessments except for one year were ma.de on the findings of the Commission, which were treated as final and conclusive. The re-assessment orders were served on the assessees in February and May 1954. On December 6, 1954, the assessees filed their writ petitions challenging the constitutionality of s. 5 (l) of the Act. It was held by the majority that s. 5 (I) was discriminatory and violative of the fundamental right guaranteed under Art. 14 of the Constitution, because s. 34 of the Indian Income-tax Act, 1922 as

(1) [195.1] 1 S.C:R. 787.

(2) [1955] 2 S.C.R. 1247.

(1) S.C.R. SUPREME COURT REPORTS

577

v.

1958

amended in 1948 operated on the same field and from and after January 26, 1950, it included the strip Basheshar Nat'ft of territory which was also occupied by s. 5 (1) and two substantially different laws of procedure, one more The commissioner prejudicial to the assessee than the other, could not of Income-tax, be allowed to operate on the same field in view of the Delhi &- Rajasthan guarantee of Art. 14 of the Constitution. In the result it was held that barring those caseshwhich were already concluded by reports made by t e Commission and directions given by Government before January 26, 1950, the cases which were pending before the com- mission for investigation as also assessment or re- assessment proceedings which were pending on Janua- ry 26, 1950, were hit by Art. 14. The assessment orders were accordingly quashed as being unconstitu- tional.

& Another

S. K. Das

• 1

Now, we come back to the problems before us: (1) what is the effect of l\iuthia's decision (1) in the present case, and (2) does the Act contemplate two separate and distinct, but severable, procedures or jurisdictions -one relating to investigation and the other to settle ment, so that the vice of discrimination (if any) atta ches to the investigation procedure only and not to the other?

We do not sec how the learned Attorney General can escape from the position that Muthia's decision(') holds in express terms that s. 5 (1) of the Act was hit by Art. 14 of the Constitution on and after January 26, 1950. The ratio of the decision was thus explain ed in the majority judgment at page 1260, 1261 :-

"After the 8th September, 1948, there were two procedures simultaneously in operation, the one under Act XXX of 1947 and the other under the Indian Income tax Act with reference to persons who fell within the same class or category, viz., that of the substantial evaders of income-tax. After the 8th September, 1948, therefore, some persons who foll within the class of substantial evaders of income-tax were dealt with under the drastic and summary pro cedure prescribed under Act XXX of 1947, while other

(1) [1955] 2 S.C.R. 1247.

73

5~8 SUPREME COUR'r REPORTS [1959] Supp.

.

v.

persons who fell within the same class of substantial BiuhesAar Natl evaders of income-tax could be dealt with under the procedure prescribed in the Indian Income-tax Act TA• co,.missi°"" after service of notice upon them under the amended D 01~. 1:••Rm~-t•':: section 34 (1) of the Act. Different persons, though 1 •• ~· a mg un er t e same c ass or category o su stant1al evaders of income-tax, would, therefore, be subject to

•J•Stnan f 11'

ci;. Another

d

h

b

•

l

f

s. K. Das J. different procedures, one a summary and drastic pro cedure and the other a normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed in Act XXX of 1947.

The legislative competence being there, these provi sions, though discriminatory, could not have been challenged before the advent of the Constitution. When, however, the Constitution came into force on the 26th January, 1950, the citizens obtained the fundamental rights enshrined in Part III of the Con stitution including the right to equality of laws and equal protect.ion of laws enacted in article 14 thereof, the position before and whatever may have been January 26, 1950, it was open to the persons alleged to belong to the class. of substantial evaders thereafter to ask as to why some of them were subjected to the summary and drastic procedure prescribed in Act XXX of 1947 a.nd others were subjected to the normal procedure prescribed in section 34 and the cognate sections of the Indian Income-tax Act, the procedure prescribed in Act XXX of 1947 being obvi ously discriminatory and, therefore, violative of the fundamental right guaranteed under article 14 of the Constitution."

That ratio is equally applicable in the present case, and ifs. 5(1) of the Act is unenforceable after January 26, 1950, the reference made thereunder against the assessee must also fall after that date and with it must go overboard all that was done under the drastic and summary procedure prescribed under the Act after January 26, 1950. Two possible arguments that (1) sub stantial evaders whose cases were referred by the Cen tral Government for investigation by the Commission

(1) S.C.R. SUPREME COURT REPORTS

579

-

v.

1958

& Another

S. K. Dai].

l\fohta's, Delhi & Rajastlla•

in Suraj Mall

before September 1, 1948, formed a class by them- selves and. (2) that proceedings having started before Bashcshar Nath the Commission under a. reference valid at the time when it was made cannot be affected by any subse- Tiie Commissio"er quent amendment of the Income-tax Act, 1922, were of Incomc-lllx, raised, but not accepted Meena.kshi Mills' or Muthia's case (1) (~)(3). There has been some argument before us as to how the two procedures-one prescribed under the Income-tax Act, 1922, and the other under the Act-compare and con- trast with each other; but this is a point which was canvassed at great length in each of the three cases mentioned above. This Court found in unequivocal terms that the procedure prescribed under the Act was more summary and drastic, and in Suraj Mall Mohta's case the substantial differences between the two procedures were summarised at pp. 463-466 of the repo1·t. \Ve do not propose to coyer the same ground again, but content ourseh-es with drawing attention to what was pointedly said in Suraj Mall l\lohta's case (1 namely, that it was conceded on behalf of Gonrnment th:it the procedure prescribed by the impugned Act in ss. 6 and 7, which we have read earlier, was more drastic than the procedure prescribed in ss. 37 and It was stated 38 of the tlwrein that though in the first stages of investigation there was some similarity bctwten the two proccdurns, the overall picture was not the same.

Indian Income-tax Act..

),

The leamed Attorney General has not seriously contested the correctness of this position, but has argued that wlrnt we are concerned with in the present case is not the mere possibility of a differential treat ment., but what actually was done by the Commission in the case of the present assessee after January 26, 1950. He has submitted that the assessee was not subjected to any differential treatment in fact, and has invoked to his aid the ratio of our decision in Syed Qasim Raz1:i v. The State of Hyderabad (1 ), where the majority judgment laid down the following tests : in a case where part of the trial cannot be challenged as

(1) (1955] 1 S.C.R. HS. (2) (1955] I S.C.R. i87.

(3) [1955] 2 S.C.R. 1247· {4) [1953] S.C.R. 589.

580 SUPREME COURT REPORTS

[1959] Supp.

B

z958

, h N

bad, it is incumbent on the court to consider, first, , whether the discriminatory provisions of the law can """' v:• "''' be separated from the rest and even without them a The commission" fair measure of equality in the matter of procedure of Iucome-tux, can be secured, and secondly, whether the procedure Delhi .s- 11ajastha11 actually followed did or did not proceed upon the discriminatory provisions and it was' stated that a <S- Anothe> s. K-:-;;_s J. mere threat or possibility of unequal treatment was not sufficient to invalidate the subsequent proceedings. A reference was there made to the earlier decisions of this Court in Keshavan Madhava Menon v. The State of Bombay('), and Lachmandas Kewalram Ahuja v. The State of Bombay (2), and the decision in Lachman das's case (supra), again a majority decision, was dis tinguished on two grounds : first, the question as' to whether after eliminating the discriminatory provisions it was still possible to secure a fair measure of equality with the normal procedure was neither raised nor con sidered; secondly, it was assumed that it was not possible to proceed with the trial without following the discriminatory procedure and as that procedure became void on the coming into force of the Constitution, the jurisdiction to proceed under that procedure came to an end. Applying the tests laid down in the majority ), the learned \lecision of Syed Qasim Razvi's case (8 Attorney General has contended that in the present case the discriminatory provisions can be separated from the rest of the Act, and the assessee was not in l{e fact subjected to any discriminatory procedure. has sought to distinguish Muthia's case on the same ground, viz., that the re-assessments made-in that case were actually based on a discriminatory procedure.

In our view the ratio of the majority decision in Syed Qasim Razvi's case (3 ) has no application in the case under our consideration, and the principle which applies is what was laid down in Lachmandas's case('). The majority decision is Syed Qasim Razvi's J:;ase pro ceeded on the finding (to quote the words of Mukherjea, J., who delivered the majority judgment) that "al though there were deviations in certain particulars,

(1) [1951] S. C. R. 228,

(2) [1952] S. C.R. 710.

(3) [1953] S. C. R. 589.

(l) S.C.R. SUPREME COURT REPORTS

581

1

8

95

·

e 1scrimma ory prov1s10ns were app 1e .

the accused had substantially the benefit of a normal trial". The minority judgments, however, very perti- Basheshar Nat"li nently pointed out that the discriminatory provisions were an integral part of the Regulation under which The CommissiotUr the accused person in that case was tried and in fact of Ineomi•taN, th d · . (as he then was) expressed the view (at p. 618) " that in testing the validity of a law, it is irrelevant to con- sider what has been done under it, for a law is either constitutional or not and the validity or otherwise cannot depend upon what has been accomplished under its provisions."

111 "" " s. K. Dt.,. J.

J Dellli 0- Rajaslllan .s. A

l' d B

ose,

· ·

v.

·

t

It is, we think, unnecessary to go into the contro versy which arises out of the two views expressed above. For the present case, it is sufficient to say that (1) the discriminatory provisions are an integral part of the procedure prescribed under the Act which cannot be separated from the rest ; and (2) we are satisfied that the report which led to the settlement was made by the Investigation Commission in pursu ance of and as a direct result of the discriminatory procedure which it followed. Indeed, the Investigation Commission followed the only procedure of investiga tion prescribed under the Act, which was a drastic and summary procedure, and if that procedure became void on the coming into force of the Constitution, the jurisdiction of the Investigation Commission practi cally came to an end (see Lachmandas's case, supra).

It is necessary to explain here why we cannot accept the contention of the learned Attorney General that there are two procedures or two jurisdictions under the Act. What in substance is the effect of the provisions of the Act, in so far as they relate to the Commission's duty under s. 3 (b)? The Commission receives a reference under s. 5 (1) if it does not proceed under s. 5 (2), it exercises such of its powers under s. 6 as it considers necessary. It then follows the procedure laid down in s. 7 a.nd submits its report under s. 8. On that report, the Central Government takes action under s. 8 (2). If, however, the assessee applies for settlement, even then the Commission has the duty to report to Government if the terms Qf settlement are

5S2

SUPREME COURT REPORTS

[1959) Supp.

v.

19Ja

.s- A•other s. K. v,., J.

approved by it. To fulfil this duty, the Commission Basheshar Nalh must get the materials by exercising its powers under s. 6 and by following the procedure laid down Th• Commissioner in s. 7. That is exactly what was done in the present of Income-tu, case. An authorised official was asked to examine the Delhi & Rajasth•• accounts etc. under s. 6 (3). He examined the accounts and submitted an interim report in 1953. He followed the procedure laid down in the Act with regard to inspection of documents, examination of witnesses etc. He then submiticd a final report. The Commission then heard the assessee on May 19, 1954, and reserved orders. On May 20, 1954, after the assessee knew what the final finding of the Commission was going to be, he filed an application for settlement. The Com mission made its final report four days after. It is difficult to underste.nd how in the circumstances stated above, it can be said that the Commission followed a non-discriminatory procedure or that it had two juris dictions-one relating to invest.igation and the other to settlement. The jurisdiction was really one, and the procedure followed also the same. It is not as though the Act provided a separate procedure for pur poses of effecting a settlement; nor is this a case where a. settlement has been made without applying any of the provisions relating to investigat-ion. A full investigation was made, and after the assessee had been subjected to the drastic and sum_mary procedure under the Act, he was told what the result of the investigation was. Then, he made an application for settlement, whioh was approved by the Commission under s. SA.

We a.re accordingly of the view that the learned Attorney General has failed to make out his case that (l) Muthia's decision{') docs not apply and (2) the settlement under s. SA of the Act is a legally valid settlement by reason of the severability or non-appli cation of the discriminatory procedure tinder the Act in the case of the assessee.

This brings me to the second question, that of waiver of a fundamental right, which is as important as it is complex. It is a. question on which unfortunately we

(1) [1955] • S.C.R. 1247.

(1) S.C.R. SUPREME COURT REPORTS

583

·

t

v.

t"

t"fi

f th

of Income-tax, t Delhi 6- Rajasthan .;. Anoth " s. I<. Das J.

have not been able to achieve unanimity. It is beset with this initial difficulty that the present appeal is Basheshar Nath not from a judgment or order rendered after the trial of properly framed issues ; it is from an order which The Commissioner merely rejected the prayer of the assessee that his pro- l d · perties a tac 1e m execu ion o e recovery cer 1 ca e should be released and the amounts paid under the terms of the settlement refunded. The question of waiver was neither raised, nor tried; and the necessary facts were not ascertained or determined by the revenue authority concerned. Unfortunately, the filing of a statement of their case by the parties was also dispens- ed with, the result whereof has been that the question of waiver has been urged for the first time in the course of arguments here. We have, however, heard full arguments on it, and I proceed to consider it oh It is snch materials as have been placed before us. necessary to make one point clear. The respondents have raised the plea of waiver, and the onus lies heavily on them to establish the essential requirements in support of·the plea.

-t

Two points arise in this connection: (1) have the respondents established, on the materials before us, the necessary facts on which a plea of waiver can b!3 right founded ; and (2) if so, can a. fundamental guaranteed by the Constitution be waived at all. If the first point is answered in the negative, the second point need not be answered in the abstract. On behalf of the respondents, it has been submitted that asimm ing (without conceding) that the discriminatory pro visions of the Act were applied in the case of the assessee before he asked for a settlement, the materials on record show that he never objected to the procedure adopted, voluntarily asked for a settlement, got by the settlement the benefit of reducing his liability for both tax and penalty, and paid without demur the follow instalments (some even after Muthia's deci ing sion (1) )-

(I) [1955) 2 S.C.R. 124;.

584

SUPREME COURT REPORTS

[1959] Supp.

z958

il•sheshar Nath v. r•e Commissioner of Inco1ne-tox, Delhi & Rajasthan & Another

S. K. Das].

Payments made up to April 55 Payment mitde on 10- 5-55 19- 6-55 7- 7-55 13- 8.55 7- 9-55 15-10-55 10-11-55 15-12-55 8- 2-56 13- 2-56 7- 3-56 14- 5-56 19- 5-56 13- 6-56 6- 8-56 7- 9-56 9-10-56 10-11-56 23-12-56 14- 1-57 29- 3-57 4- 6-57 8- 9.57

" " " " " " " " " " " " " " " " " " " " " "

10,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 5,000 8,000 - - - 1,28,000 ------

The learned Attorney General has in this connection referred us to the application for settlement which the assessee had made to the Commission, wherein the following statements were made :-

" In view of the fact that though no disclosure statement had been made before the submission of his reports by the authorised official, still during the enquiry before the Commission, the assessee and his auditors admitted their liability to tax in respect of the aforesaid sum of Rs. 4,47,915, the Commission was of the opinion that the assessee should be granted the benefit of a settlement on the lower concessional basis of payment of 75 per cent. of the undisclosed· income by way of tax. The Commission was also of the opinion that the assessee should pay by way of penalty a sum of Rs. 14,064.

(l) S.C.R. SUPREME COURT REPORTS

585

"

01

h"

r95J

4 & • -

Basheshar N arh v.

The assessee accepts the conclusions of the Commis- sion as regards the amount of income that escaped assessment, the tax payable thereon and the penalty payable as aforesaid." Th• Commissioner On the basis of these statements, the learned Attorney of 1 .. come-tnx. General has argued that there is no foundation for the Delhi & Rajas11ia,. suggestion made on behalf of the assessee that the application for sett.lement was made " under the pressure of circumstances and in view of the coercive machinerv of the Act." He has submitted that the necessary. facts on which the plea of waiver is founded have been established, and he has relied on three cases decided by this Court, where according to him the effect of the decisions was to accept snch a plea in circumstances very similar : Dewan Baha.dur Seth Gopal Das M.ohta v. The Union of India (1 ); Baburao Namyanrao Sanas v. The Union of India (2); and Laxmanappa Hawu11uU1tappa Jamkliandi v. The Union of India (3). On behalf of the assesscr, it is contended on the contrary that the necessary facts to found a plea of waiver are totally absent. in the present case, and none of the aforesaid three decisions which were all prono1111ct>d on the same day proceed on a plea of waiver.

S. K. Das }.

Two ofthe three decisions referred to above relate to a settlement made under s. SA and the third to an order made under s. S(2) of the Act. All tho three decisions were pronounced on applications made under Art. 32 of the Constitution, and not on any appeal from an order of the revenue authority. In Gopal Das l\Iohta's case (1) the argument. urged was, inter alia, that ss. 5, 6, 7 a.nd S of the Act were invalid and ·ultra vires as they contravened the provisions of Ans. 14, 19 (1) (f), and 31 of the Constitution and the prayer made was that the entire proceedings should be qua.shed a.s also all orders made by the Central Govern In ment in pursuance of the settlement under s. SA. rejecting the argument and prayer, :Ma.ha.ja.n, C. J., who delivered the judgment of the Court said at p. 776-

(iJ [1955] 1 S.C.R. 773.

(2) [1954] 26 I.T.R. 725.

74

(3) [1955] I S.C.R. 769.

586

SUPREME COURT REPORTS

[1959] Supp.

r958

·.S • . f(. Das ].

.so Anoth"

"In our judgment this petition is wholly miscon- ceived. Whatever tax the petitioner has alreadv paid, 8 h h N "' ".~' .,,. or whatever is still recoverable from him, is· being The commi.,ionu recovered on the basis of the settlement proposed by •f Income·tax, him and accepted by the Central Government. Because IMhi .so Rajasthan of his request for a settlement no assessment was made against him by following the whole of the procedure of the Income-tax Act. In this situation unless and until the petitioner can establish that his consent was improperly procured and that he is not hound thereby he cannot complain that any of his fundamental rights has been contravened for which he can claim relief under art. 32 of the Constitution. Article 32 of the Constitution is not intended for relief against the voluntary actions of a person. His remedy, if any, lies in other appropriate proceedings." There has been a good deal of argument before us as to the true effect of the decision in Gopal Das Mohta's case('). While I recognise that the reason stated for the decision, viz., that Art. 32 is not intended for relief against voluntary actions of a person, comes very near to saying that a person has waived his protection in a given case since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him, I am unable to bold that the decision proceeded strictly on the doctrine of waiiver; it is perhaps true to say that; some of the observations made therein are of a " Delphic nature to be translated into concreteness by the process of litigat ing elucidation" (to borrow the words of Frankfurter, J., in Machinists v. Gonza.les ('). It seems to me that the decision proceeded more upon the scope of Art. 32 I am fortified in than upon the doctrine of waiver. this view by the circumstance that in a decision given only a month earlier (see Bchram Kkursherl Pesikaka v. The State of Bombay(')) the same learned Chief Justice expressed himself strongly, though tentatively, against introducing in our Constitution tbe doctrine of waiver as enunciated by some American Judges in construing the American Constitution, without a. fuller discussion of the matter. The report of Gopal

(1) [1955] 1 S.C.R. 773.

(2) (1958) 356 U.S. 617, 6r9.

(3) (1955] I S.C.R. 613, 653, 65i·

(1) S.C.R. SUPREME COURT REPORTS

587

It is not, therefore, reasonable to hold that the T.h• Commtss;11,,.,

Das Mohta's case (1) does not contain any reference to the doctrine of waiver, and it is obvious that no Basheshar Nalli fuller discussion of the doctrine took place in that case. effect of Gopal Das l\fohta's case is to uphold the of IneomHas. doctrine of waiver. Babu Ra.o's case (~) merely follow- Delhi & Rajas1han ed Gopal Das Mohta (1) and gave no separate reasons. Laxmanappa Jamkhandi's case (3 ) dealt with an order under s. 8(2) of the Act and said at p. 772 :-

.s- Anolh1r s. I<. Das J.

z95B

v.

" From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commis sion is concerned in September, 1952, more than two yea.rs before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November, In these circumstances we are of the opinion 1953. that he is entitled to no relief under the provisionfl of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindar garh, [1951] S.C.R. 127, that as there is a special pro vision in Article 265 of the Constitution, that no tax shall be levied or collected except by authority of law, clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inas much as the right conferred by Art. 265 is not a right confened by Part Ill of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have a.risen it would not be just and proper to direct the issue of any of the writs the issue of which is dis cretionary with this Court." Here, again, there is no reference to the doctrine of waiver, and the case was decided on the ambit and scope of Art. 32 of the Constitution.

I would hold, therefore, that the decisions of this Court relied on by the learned Attorney General do

(J) (1955] I S.C.R. 773·

(2) (1954] 26 I.T.R. 7t5.

(3) (1955] I S.C. R. 76g.

588

SUPREME COURT REPORTS

[1959] Supp.

-

z95•

.s. At1other

not help him in establishing waiver. Let me now the learned examine the circumstances on which 11 Indeed, ' Attorney General founds his plea of waiver. Bash"h"' N" n. c • .::~.issio•" it is true that the assessee submitted to the discrimina. tory procedure applied to him by the Commission; o/ Income-ta>. Delhi .s. Rajastlian he also asked for a settlement under which he agreed to pay 75% of his alleged tax liability and a small amount of penalty ; he made some payment in instal- s. K. Das J. ments even after Muthia.'s decision in December, 1955. Do these circumstances a.mount to waiver? It is to be remembered that in 1953-1954 when the discrimina tory procedure of the Act was applied to him and the report a.gain~t him was made by the Commission on which the settlement is based, the assessee did not know, nor had it been declared by a comt of compe tent jurisdiction that s. 5( I) of the Act was ultra vires. In his application for a. settlement, he said clearly in paragraph 3 that the Commission announced it as its view that the income, profits and gains that had escaped assessment in the hands of the assessee was Rs. 4,47,915. The assessee also knew that under the Act this finding was final and binding on him. If in these circumstances, the assessee made an application for settlement, can it be said that it is a voluntary or intentional relinquishment of a known I venture to think not. It has been said right ? that •waiver' is a troublesome term in the law. The generally accepted connotation is that to con. stitute there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known exist ing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right; estoppel is a rule of evidence. (See Dawson's Bank Limited v. Nippon Menkwa Kabu shiki Kaisha)('). What is the known legal right which the assessee intentionally relinquished or agreed to release in 1953-1954 ? He did not know then that any part of the Act was invalid, and I doubt if in

' waiver ',

(1) (1935) L.R. 6• I.A. 100, 1.o8.

(1) S.C.R.. SUPR.EME COURT REPORTS

589

8

t

1 .

t •

S. K.Das

. d' t'

<I> Anolh•• · ·

t b h Id• t b •

1 95 Bas~esha•· Nat' v.

the circumstances of this case, a. plea of ' waiver • can be founded on the maxim of 'ignorance of law is no excuse '. I do not think that the maxim " ignorance of law is no excuse' can be carried to the extent of The Ccmmissfotie'f saying that every person must be presumed to know of Incom~-tu. that a. piece of legislation enacted bv a. legislature of Delhi e;. Rajastha" l' J . compe en. ]Uris ic ion mus o e mva. 1r , m e e case it prescribes a differential treatment, and he must, therefore, refuse to submit to it or incur the peril of the bar of waiver being raised against him. I do not think t.hat such pre-science is a necessary corollary of the maxim. On the contrary, the pre- sumption, if any, which operated at 'the relevant t.in1e was the presumption that a law passed by a com. petent legislature is valid, unless declared unconstitu- tional by a court of competent jurisdiction. Further. more, I do not think that any inference of waiver cau be retrospectively drawn from the instalments paid in 1956-57, particularly when the question of refund of tlw amounts already pa.id is no longer a liv~ issue before U!i. It would; I thiuk, be going too far to hold that every unsuspecting submission to a. law, sub- sequently declared to be invalid, must gh·e rise to a. plea of waiver: this would make constitutional rights depend for their vitality on the accident of a timely challenge and rcuder them illusory to a. very large extent ..

I hold, thetefore, that the necessa1·y foundation for sustaining the plea of waiver has not been laid in this case, and the onus being <m the respondenti>, the plea must fail.

·

In view of my finding that the necessary founda tion on facts for sustaining the plea. of waiver has not been laid in this case, it becomes unnecessary to decide, in the abstract, the further question if a. right guaranteed by any of the provisions in Part III of the Constitution can be waived a.t all. I a.m of the view that this Court should indeed be rigorous in a.voiding to pronou,nce on constitutional issues whe1·e a reason. able alternative exists; for we have consistently followed the two principles (a) that "the Court will not anticipate a question of constitutional law in

590

SUPREME COURT REPORTS . [1959) Supp

a.dva.nce of the necessity of deciding it" (Weaver on Constitutional La.w, p. 69) a.nd (b) "the Court will not Ba•h•sh•r Nath formulate ·a. rule of constitutional la.w broader than iR TA• c0.:;.;.,ioner required by the precise facts to which it is to be of Income-tax. applied" (ibid, p. 69).

cS- Another

S. K. Da; ].

Delhi .s- Rajasthan My Lord the Chief Justice a.nd my learned brother Kapur, J., have however expressed the view that the fundamental right guaranteed under Art. 14 cannot be waived; my lea.rued brethren, Bha.gwati a.nd Subba. Rao, JJ., have expressed the view that none of the fundamental rights guaranteed by the Constitution ca.n be waived.

I greatly regret to have to sa.y that I have come to a. conclusion different from theirs with regard to this question, and as they have thought fit to express their views on it I proceed now to explain why I have come to a conclusion different. from those of my lea.rued brethren on this question.

This question was mooted, though not fully answer ed, in Behram Khurshed Pesikaka.'s case('). Venkata ra.ma Aiya.r, J., expressed his views at pages 638 to 643 of the report. l\Ia.haja.n, C. J., with whom Mukherjea., Vivian Bose a.nd Ghulam Hasan, JJ., con curred, ·expressed his views at pages 651 to 655 of the report, a.nd my Lord the Chief Justice as Das, J., reserved his opinion on the question. The view which Venkata.rama. Aiyar, J., expressed was this : if thl' constitutional provision w hioh has been infringed affects the competence of the legislature which passed the law, the lii,w is a nullity; as for example, when a State en;octs a law which is within the exclusive compe tence of the Union; when, however, a law is within the competence of the legislature which passed it and the unconstitutionality a.rises by reason of its repugilancy to provisions enacted for the benefit of individuals, it is not a nullity, lmt is merely unenforceable; such unconstitutionality can be waived a.nd in that case the law·becomes enforceable. He said that in America this principle was well settled a.nd he referred to Cooley on Constitutional Limitations, Volume l, pages 368 to 371 ; Willis on Constitutional Law at

(1) [1955]1 S.C.R. 613, 653, 65 ••

(1) S.C.R. SUPREME COURT REPORTS

591

pages 524, 531, 542 and 558; Rottschaefer on Con- stitutional Law at IJages 28 and 29-30. He then refer- red to certain American decisions in support of his views and then said :-

" The position must be the same under our Con-

1958

Bashesh·ar Nath

• v. The Commissioner of Income-tax.

J

stitution when a law contravenes a prescription in- Delhi .s. Rajasthan tended for the benefit of individuals ............ It is open to anv person whose right;s have been infringed to waive it and when there is waiver, there is no legal It will be impediment to the enforcement of the law. otherwise if the statute was a nullity; in which case it can neither be waived nor enforced. If then the law is merely unenforceable and can take effect when waived, it cannot he treated aR non est. and as effaced out of the statute book." The contrary view expressed by Mahajan, C .• J., can be best explained in his own words :

.s. Another s. K. Das J.

-

"We think t.hat it is not a correct proposition that constitutional provisions in Part III of our Con stitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the law making power of a State is restricted by a written fundamental law, then any law enacted and opposed to fundamental law is in exc<>ss of .the legislative authority and is thus a nullity. Both these declara tions of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of the Parliament and the State legislatures as conferred by Arts. 245 and 246 of the Constitution stands curtailed by the funda. mental rights chapter of the Constitution." His Lordship then referred to Art. 13 of the Constitu tion and said that it was a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which came into conflict with Part III of the Constitution. His Lordship added :

" In our opinion the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter ......... With- out finally expressing an opinion on this question, we

•

592

SUPREME COURT REPORTS

(1959] Supp.

8

1 95

•

ti.::.

v.

&. Anot/,.,

J d t

· K D 1 . .s.

are not for the moment eonvinced that this theory Ba>heslmr Nuth has any relevancy in construing the fundamental rights conferred by Part III of the Constitution. We Th• Commi"io"" think that. the rights dcscribPd as fundamental rights of Income-tax, are a necessary consequence of the declaration i11 the Delhi & Rajastlmn preamble that the people of ludia have solemn!'· t't t I d" reso ve o cons 1 u e n 1a mto a sovereign l emocra. tic republic and to secure to all its citizens i" ustice, social, economic and political; liberty of thought, ex pression, belief, faith and worship ; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put t.here as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy."

I

·

'

J

It would appear that the two main reasons which Mahajan, C. J., gave in support of the views expressed by him were these. Firstly, he held I hat the effect of Art. 13 of the Constitution was to prohibit the State from making any laws which ca.me into ro11tliet with Part 11 I of the Constitution and )113 recoguised no such distinction as was drawn by Venkatarama Aiyar, J., between absence of legislative power (t.hat is, in competence of the legislature) and non-observance of provisions which operate merely as a check on the exercise of legislative power. He thought that absence of legislative power and check on the exercise of legis lative power were both aspects of want of legislative power. Secondly, he referred to the preamble and the scheme of Part III of the Constitution in support of his view that the doctrine of waiver did not apply. I shall take these reasons in the order in which I have stated them.

First, as to the effect of Art. 13 of the Constitution. Article 13 is in two parts: the first part deals with " a)l laws in force in the territory of India immediate ly before the commencement of this Constitution " and says that so far as such laws are inconsistent with the provisions of Part III, they shall to the extent of such

(1) .S.C.R. SUPREME COURT REPORTS

593

1

h.

1958

N A 1

& Another

S. f\. Das ].

inconsistency be void; the second part deals with laws made after the commencement of the Constitution and says that" the State shall not make any law which Ba.<"~~· " takes away or abridges the rights conferred by The commissioner Part III" of the Constitution and any law made in of ln&ome-ta,., contravention of cl. (2) of .Art. 13 shall to the extent of Delhi & Rajasthan the contravention be void. It seems clear to me that the .Article itself recognises the distinction between absence of legislative power which will make the law made by an incompetent legislatm::e wholly void, and exerciJie of legislative power in contravention of a restriction or check on such power, which will make the law ·void to the extent of the inconsistency or con- travention. The use of the words "to the extent of the inconsistency" and "to the extent of the contra- vention" indubitably points to such a distinction, and indeed this was pointed out in Bhikaji Narain Dha- ). This was an kras v. The State of Madhya Pradesh (1 unanimous decision of this Court and several earlier decisions including the decision in Kesavan l\fadhava Menon's case (2), on which Mahajan, C. J., placed so much reliance, were considered therein. The decision ) was also considered, in Behram Khurshed Pesikaka (3 and then the following observations were made with regard to Art. 13 of the Constitution at p. 598-

" Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabili ties accrued before the date of t.he Constitution, as. was held in Keshavan Madhava Menon's case. The law continued in force even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right. In short, Art. 13(1) had the effect of nullifying or rendering the existing law which had become in consistent with Art. 19(1Xg) read with cl. (6) as it then $tood ineffectual, nugatory and devoid of any legal

(1) [1955] 2 S.C.R. 589,

(2) [1951] S.C.R. 228.

(3) [1955] I S.C.R. 613, 653, 654.

75

594

SUPREME COURT REPORTS

[1959] Supp.

'958

v.

force or binding effect only in respect of the exercise Bn•heshn• Nath of the fundamental right on or after the date of the commencement of the Constitution ............. AII la.w8, He Commission" existing or future, which a.re inconsistent with the pro. of . Incom~-tax. visions of Pa.rt III of our Constitution a.re, hy the Delhi &· Ra7asth•n express provision of Art. 13, rendered void ' to the extent of such inconsistency'. Such laws were not

"' Anoth" s. K. Da• 1. dead for a.II purposes."

The aforesaid vie';'I" expressed in Bhika.ji Na.rain's case (1) was accepted in many later decisions including the decision in Muthia.'s case('). The same distinction was a.gain referred to in another unanimous decision of this Court in The State of Bombay v. R.M.D. Ghamar baugwal,a (8 ) where at p. 885 it was observed :

"The Court of Appeal has rightly pointed out that when the validity of a.n Act is called in question, the first thing for the court to do is to examine whe ther the Act is a. law with respect to a. topic assigned to the particular Legislature which enacted it. If it is, then the court is next to consider whether, in the case of a.n Act passed by the Legislature of a. Province (now a. State}, its opera.ti on extends beyond the bounda ries of the Province or the State, for under the provi sions conferring legislative powers on it such Legisla ture can only make a. law for its territories or any pa.rt thereof and its laws cannot, in the absence of a. terri torial nexus, ha. ve any extra. territorial operation. If the impugned law satisfies both these tests, then finally the court has to ascertain if there is anything in any other pa.rt of the Constitution which places any fetter ·on the legislative powers of such Legislature. The impugned la.w has to pa.as a.II these three tests."

Therefore, the mere use of the word " void " in Art. 13 does not necessarily militate a.ga.inst the a.ppli ca.tion of the doctrine of waiver in respect of the provi sions contained in Pa.rt III of our Constitution. Under the American Constitution a.lso, a. la.w ma.de in viola tion of a. constitutional guarantee is struck down, because under Art. VI of tha.t Constitution, " the Constitution and the laws of the United States which

(1) (1955) 2 S.C.R. 589.

(2) (1955) 2 S.C.R. 1247.

(3) (1957) S.C.R. 874.

(1) S.C.R. SUPREME COURT REPORTS

595

shall be made in pursuance thereof ......... shall be the supreme law of the land." I am unable, therefore, to accept the view that Art. 13 shows that the doctrine of waiver can never be applied in respect of the provi- Th• CommissiNH sions in Part III of the Constitution. of I11 come-t~x. Velhi cl'- Rajastha"

811 ,1ieshar Nath v.

th

, 4 " :....': " s. 1c Dns J.

h

L

et me now go to t e secon

I s t ere any· thing in the preamble and the scheme of our Constitu- tion, with particular reference to Part III, which will make the doctrine of waiver inapplicable? Let me first place the two preambles side by side :

reason.

d

h

for

" We,

justice,

to into a

the people of .

this Constitution for

Preamble to our Constitution.

Preamble to the American Constitution, 1787. " We the people of the India, having solemnly i United States, in order to constitute form a more perfect Union, resolved insure sove:reign establish India democratic republic and domestic tranquillity, pro to secure to all its citizens : vide the common justice, social, economic defence, promote the gene and political ; liberty of ral welfare, and secure the thought, expression, belief, blessings of liberty to our. faith and worship; equa- selves and our posterity, lity of status and of do ordain and establish opportunity ; and to pro- the mote among them all United States of Ame. fraternity the dignity of the individual and the unity of the na- tion ; in our Constituent Assembly this twenty-sixth day of November, 1949,do hereby adopt, enact and this to ourselves give Constitution." Undoubtedly, there is difference in phraseology and emphasis: more than a century and half had passed between the two Constitutions; many world events of far-reaching social and economic consequences had taken place in the mea.ntime, and men's ideas had undergone radical changes. It may be that the domi nant purposes, as shown by the preamble, of the

assuring

rica.."

596

SUPREME COURT REPORTS

(1959) Supp.

v.

1 9JB

American Constitution were : (a)

to form a more Ea.hesha. Nath perfect Union; (b) to establish justice; (c) to insure domestic tranquillity ; (d) to promote general welfare; The commi.'5ioner and ( e) to secure the blessings of liberty. In our Con o/ Income-tu>. stitution, the emphasis is on the Welfare State-on· Dtlhi .s. Hajastha•Justice, Liberty, Equality and ]'raternity. But the question before us is the limited question of the appli- I do not find any- cation of the doctrine of waiver. b h' t mg in t e two pream !es which will make the doctrine applicable in one case and not applicable in the other.

b Another - s. 1<. Das J.

h

It is necessary to refer here to one important distinc tion between the two Constitutions. Speaking broadly, the American Constitution of 1787, except for defining the enumerated powers of the Fedelal Government and limiting the powers of the States, was ai:t outline of Its provisions were government and nothing more. written in general language and did not provide minute specifications of organisation or power·. It contemplat ed subsequent legislation and interpretation for carry In other words, it was ing the provisions into effect. early recognised that the Constitution was not self. executing. The Indian Constitution is more detailed, and in Part III of the Constitution a.re provisions which not merely define the rights but also state to ).Vhat extent they are subject to restrictions in the interests of general welfare, etc. In other words, there is an attempt at adjustment of individual rights with social good, and in that sense the limitations or restric tions are also defined. But I do not think that this distinction has any particular bearing on the question at issue before us. The rights as also the restrictions a.re justiciable, and a;n interpretation of the rights given and of the restrictions imposed, by courts of competent jurisdiction is contemplated.

Indeed, I recognise that there is a constitutional policy behind the provisions enacted in Pa.rt III of the Constitution. In a sense, there is a legislative policy in all statutory enactments. In my opinion, the crucial question is not whether there is a constitu tional or legislative policy behind a particular provi sion, but the question is-is the provision meant

(1) S.C.R. SUPREME COURT REPORTS

597

'

v.

_

r958

& Anoth1 s. K. Das 1

primarily for the benefit of individuals or is it for the benefit of the general public ? That distinction has, I Baslieshar Nath think, been recognised in more than one decision. Take, for example, an ordinary statutory enactment Th• Commission,, like s. 80 of the Code of Civil Procedure which says of Income-ta~. that no suit shall be instituted against the Government Delhi & Uajasthan or against a public officer in respect of any act pur- porting to be done by such public officer in his official capacity until the expiration of two months next after a notice in writing has been given, etc. There is un- doubtedly a reason of public policy behind this provi- sion, but it is open to the party for whose benefit the provision has been made to waive notice and indeed the party may be estopped by his conduct from plead- ing the want of notice. As the Privy Council pointed out in AL. AR. Villai:ar Ohettiar v-. Government of the ), there is no inconsistency be- Province of Madras (1 tween the propositions that the provisions of a section are mandatory and must be enforced by the court and that they may be waived by the authority for whose benefit they are provided. The question then is-is there anything in the statute which militates against the application of the doctrine of waiver tu such right, subject to the safeguards and precautions necessary for the application of the doctrine, provided the right is for the benefit of individuals?

I am conscious that rights which the Constitution itself characterises as fundamental must be treated as such and it will be wrong to whittle them down. But are we whittling down fundamental rights when we say that the question of waiver of fundamental rights canv.ot be answered in the abstract-by a general affirmative or a general negative; the question must always depend on (a) the nature of the right guarante ed and (b) t.he foundation on the basis of which the plea of waiver is raised. It is to be remembered that the rights guaranteed by Part III of the Constitution are not confined to citizens alone. Some of the rights are guaranteed to non-citizens also. Moreover, they are not all rights relating to justice, liberty, equality and fraternity ; some of the provisions define the rights

(1) (1947) L.R. 74 I.A. 223, 228.

598

SUl>REl\IE COURT REPORTS

[1959] Supp.

'9.!8

8 .,""'"'' .Yaih "·

while others indicate the restrictions or checks subject to which the rights are granted. Article 33, for exam- pie, does not give any right to any person; on the Th• Commi,,io•m contrary it gives power to Parliament to modify the rights conferred by Part III in their application to of. 1.,comc-Jax, Dclh• & 11a1asilmn certain categories of persons. Article 34 lays down a hil III w e lt is not, there fore, quite correct to say that all the provisions in Part III grant fundamental rights, though the heading is 'Fundamental Rights'.

& d" s. H. Das ;. martial law is in force in any area.

res rw wn on ng s con erre

d b p y

t . t'

, ht

art

""

fi

01

There is, I think, a three-fold classification: (1) a right granted by an ordinary statutory enactment; (2) a right granted by the Constitution; and (3) a right guaranteed by Pa.rt III of the Constitution. With regard to an ordinary statutory right there is, I think, no difficulty. It is well recognised that a statutory right which is for the benefit of an individual can in proper circumstances be waived by the party for whose benefit the provision has been made. With regard to a constitutional right, it may be pointed out that there are several provisions in our Constitution which do not occur in Part III, but which yet relate to certain rights ; take, for example, the rights relating to the Services under the Union and the States in Part XIV. I do not think that it can be seriously contended that a right which is granted to a Government servant for his benefit cannot be waived by him, provided no I may refer in question of jurisdiction is involved. this connection to the provisions in Part XIII which relate to trade, commerce and intercourse within the territory of India. These provisions also impose cer tain restrictions on the legislative powers of the Union and of the States witli regard to trade and commerce. As these provisions are for the benefit of the general public and not for any particular individual, they can not be waived, even though they do not find place in Part III of the Constitution. Therefore, the crucial question is not whether the rights or restrictions occur in one part or other of the Constitution. The crucial question is the nature of the right given: is it for the benefit of individuals or is it for the general public?

(1) S.C.R. SUPREME COURT REPORTS

599 .

·

I958 Bashesh"' Nath v.

I may here Tha.t, in my opinion, is the true test. state that the source of the right--contractual or statu- tory-is not the determining factor. The doctrine of waiver is grounded on the principle that a right, statu- The Commission,, tory or otherwise, which is for the benefit of an indivi- of Income-tu, dual can be waived by him. which is for the benefit of the general public must in its actual operation relate to particular individuals, in the same way as a right for the benefit ofindividuals will in its actual operation arise in connection with individual A or individual B. The test is not whether in its operation it relates to an individual. The test is -for whose benefit the right has been primarily granted for the benefit of the general public or for individuals ?

I am aware that a right Delhi &- Rajastlta"

& Anothet s. K. Das J.

Let me now apply this test to some of the provisions in Part III of t!ie Constitution. These provisions have been classified under different heads: (1) right to equality, (2) right to freedom, (3) right against exploitation, (4) right to freedom of religion, (5) cultu ral and educational rights, (6) right to property and (7) right to constitutional remedies. There can be no doubt that some of these rights are for the benefit of the general public. Take, for example, Art. 23 which prohibits traffic in human beings, etc ; so also Art. 24 which says that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment. I do not wish to multiply examples and it is sufficient to state that several of these rights are rights which are meant primarily for the benefit of the general public and not for an individual. But can we say the same thing in respect of all the rights? Let us take Art. 31, which says that no person shall be deprived of his property save by authority of law and that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation, etc. Take a case where a man's property is acquired under a law which does not fix the amount of compensation or specify the princi ples on which or the manner in which the compensa tion is to be determined and given. The man whose

600 SUPREME COURT REPORTS

[1959] Supp.

5

1958

c~ A"•'""

property is taken may raise no objection to the taking Indeed, he may of his property under such law. Ba•ht<h•r Nath expressly agree to Government taking his land for a Th• c00,:,;,;,,fo.,,, public purpose under the law in question, though it of /ncome-toK, _does not comply with Fhe requirements as to compeu Delhi .s: Rajasthon sation· • Can such a man after two or three years change his mind and say that the law is invalid and his land on which a school or a hospital may have · K. Das f. been built in the meantime should be restored to him, because he could not waive his fundamental right ? In my opinion, if we e~press the view in the abstract that no fundamental right can ever be waived, many startling and unforeseen result.a may follow. Take another example. - Suppose a man obtains a permit or a licence for running -a motor vehicle or an excise shop. Having enjoyed the benefit of the permit for several years, is it open to him to say when action is proposed to be taken against him to terminate the licence, that the law under which the permit was granted to him was not constitutionally valid? Hav ing derived all the benefit from the permit granted to him, is it open to him to say that the very Act under which a permit was granted to him is not valid in law ? Such and other startling results will follow if we decide in the abstract, by a. genera.I negative, that a fundamental right can never be waived. Take Art. 32, which is a right to a constitutional remedy, namely, the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by .Part III. It is now well settled by several decisions of this court that the right under Art. 32 is itself a fundamental right. Suppose a per son exercises that right and initiates appropriate pro ceedings for enforcement of a fundamental right. Later he thinks better of it and withdraws his application. Still later he changes his mind. Can he then say that he could not waive his right under Art. 32 and the order passed on his application for withdrawal had 1io legal validity? We may take still another example. Under Art. 30(1) of the Constitution, all minorities, whether based on religion or language, have the right to establish and administer educational institutioDS of

(1) S.C.R. SUPREME COURT REPORTS

601

:r95B

their choice. Suppose, there is a minority educational institution and the minority has the right to adminis- B h h N A as esv~' 01 ter that institution, but they want grant from Govern- ment. The minority may have to surrender part of The con1mi;sion., its right of administration in order to get Government of Tneome-t~:r. a.id. Can the minority waive its right? Such a Delhi & Rajastha" question arose for consideration in the advisory opi- Ilion which we gave in connection with the Kera.la Education Bill and, so far as I have been able to understand, the effect of our opiniou is that the min.o- . rity can surrender part of its right of administration of a school of its own choice in order to get aid from Government. If we now hold that the minority . can never surrender its right, then the result will be that it will never be able to ask for Government aid.

S. ,K. Das}.

& Another

I do not see any such vital distinction between the provisions of the American Constitution and those of our Constitution as would lead me to the conclusion that the doctrine of waiver applies in respect of consti tutional rights guaranteed by the American Constitu tion- but will not apply in respect of fundamental the Indian Constitution. rights guaranteed by Speaking generally, the prohibition in Part III is against the State from ta.king any action in violation of a fundamental right. The word •State' in that Part includes the Government and Parliament of India as also the Government and Legislature of each of the States and also all local or other authorities within the territory of India or under the control of the Govern ment of India. The American Constitution also says the same thing in effect. By Art. VI it states that the Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land. It is -well settled in Ame rica that the first ten amendments to the original Con stitution were substantially contemporaneous and should be construed in pari materia. In many of the amendments the phraseology used is similar to the phraseology of the provisions of Part III of our Constitution.

The position under the American Constitution is

76

602 SUPREME COURT REPORTS

[1959] Supp.

r958

Basheshar .\·~th v.

well settled aud a succinct statement of that positiou will be found in ·Rottschaefer on Constitutional Law, pp. 28-29. The lParned author has summarised the

Thi Co1nmission,·r posit io11 th US : of. Inconie·t••.

""Anoth" S. K. Das]. Protection in a given

" There are c0rt.ain constitutional provisions that Delli .s. Rajasth"" may be waived by the person for whose protection they were intended. A person who has waived that instance may not thereafter raise the issue that his constitutional rights have been infringed in that instance, since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him.

A person who would otherwise be entitled to raise a constitutional issue is somet.imes denied that right because he is estopped to do so. The factor usually present in these cases is conduct inconsistent with the present assert.ion of that right., or conduct of such character that it would be unjust to others to permit him to avoid liability on constitutional grounds. A person may not question the constitutionality of the very provision on which he bases the right claimed to be infringed thereby, uor of a provision that .is an integral part in its establishment or definition. The acceptance of a benefit under one provision of an Act does not ordinarily preclude a person from asserting the invalidity of another and severable provision thereof, but there are exceptions. to this rule. The promoters of a public improvement have been denied the right to contest the validity of the rule apportion ing its cost over the benefited lands, and a I?erson who has received t,he benefits of a statute may not there after assert its invalidity to defeat the claims of those against whom it has been enforced in his own favour. A state is estopped to claim that its own statute de prives it of its property without due process of law; but it is permitted to assert that its own statute in- . vades rights that its constitutio.n confers upon it. Prior inconsistent conduct will not, however, preclude a person from asserting the invalidity of an act if under all the circumstances its assertion involves no

(l) S.C.R..

f-IUPREME COUR.T REPORTS

603

unfairn('SS or injustice to those against whom it is raised."

The learned Attorney General placed reliance on

8

'9'

81Uh1sllar N alh v.

(1) Pierce v. Somerset Rail" n. Commission" the following decisions: u.:a,11 (1); (2) Wall Y. Par.rot Silver and Oopp~r . Com- of. Incom~-11u, pany (2) ; (3) Pierce Oil Oorpom.tion v. Phoenix Refin- Delh• & Ra1as1lian ing Oompari,11(3 ); (4) Shepard v. Barrone); (5) United States v. 111urdock n; (6) Patton v. United States (6 ); and (7) Adams v. United States(7). The position in America is so well settled that I think it is unnecessarv to examine the aforesaid decisions in detail. I need only refel' to the observations of l<'ra.11kfurtcr, 'J ., in William A. Adam's case (supra). The observations were made in connection with a case where a trial was held without a jury at the request of the accused person himself in spite of the guarantee of Amendment VI. The observations were,-

& Anoth., s. K. Das J.

" What was contrived as protections for the accused Rhould not be turned into fetters. To assert as an absolute that a layman, no matter how wise or experi enced he may be, is incompetent to choose between judge and jury as the tribunal for determining his guilt or innocence, simply because a lawyer has not advised him on the choice, is to dogmatize beyond the bounds of learning or experience."

I have not been able to find any real reason on the basis of which the decisions given abo\·e wit.h regard to the American Constitution can be held to be inapplicable to similar cases arising under the Indian Clonstit.ution.

'

Two subsidiary reasons have been given for holding that the position under the Indian Constitution is different.. One is that ours is a nascent democracy and, therefore, the doctrine of waiver should not apply. With respect, I am unable to concur in this view. I do not think that we shall be advancing the cause of democracy by converting a fundamental right into a fetter or using it as a means for getting out of an

(1) (1898) 171 U.S. 641. (3) (1922) 259 U.S. 125 (5) (1931) 2R4 U.S. 14 I.

(2) (1917) 2H U.S 407 (4) (1904) 194 U.S. 553. (6) (1930) 281 U.S. 276.

(7) (1942) 317 FS. 269.

604

SUPREME COURT REPORTS

(1959] Supp·

•.

i958

agreement freely entered into by the parties. I appre- Bashesh•• Noth ciate that waiver is not to be light-heartedly applied, and I agree that it must be applied with the fullest The commissioner rigour of all necessary safeguards and cautions. What I seriou~Iy object to is a statement in the abstract and of /n,ome-tax, Delhi .s- R•jasthan in absolute terms that in no circumstances can a right given by any of the provisions in Part III of the · Anoth" s. K. Dus J. Uonstitutfon be waived. Another point taken is that . the provisions in Part III embody what are called 'natural rights' and such rights have been retained by the people and can never be interfered with. I am unable to acquiesce in this. The expression 'natural rights' is in itself somewhat vague. Sometimes, rights have been divided into 'natural rights' and 'civil rights', and' natural rights' have been stated to be those which are necessarily inherent or innate and which come from the very elementary laws of nature whereas civil rights are those which arise from the needs of civil as distinguished from barbaric commu nities. I am unable, however, to agree that any such distinction is apparent from the provisions in Part III of our Constitution : all the rights referred to therein appear to be created by the Constitution. I do not think that Locke's doctrine of' nature.I rights', which was perhaps the authority for the American Declara tion of Independence, played any part in the enactment of the provisions of Part III of our Constitution. The doctrine which has long since ceased to receive general acceptance, has been thus explained by E. W. Paterson (see Natural Law and Natural Rights, Southern Methodist University Press, Dallas, 1955, p. 61):

" The theory of natural rights, for which we are indebted to the seventeentji-century English philoso pher, John Locke, is essentially different from the theories of natural law just discussed in that it lacked the two important characteristics above mentioned: the concept of an immutable physical order and the concept of divine reason ............ ~e begins with the purpose of justifying the existence of a government with coercive powers. What inconveniences would arise if there were no government? Men would live in _ a 'stage of nature'; to avoid confusion with the

(1) S.C.R. SUPREME COURT REPORTS

605

1951

6' Anotlr1r

S. K. D111 J.

R~;hesh«r Nlllfl · "·

political state I shall call this a • condition of nature '. In such a condition man would be free to work, to enjoy the fruits of his labour, and to barter with others; he would also be free to enforce the Jaw of T/11 Commissiimir nature (whose precepts Locke did not define) against of Inc1Hne-ta1. every other man. Since Locke was an optimist about Delhi & RajostliH human nature he thought men would get along pretty well in this lawless condition. Yet the condition of nature is for Locke a fiction like the assumption of a frictionless machine in mechanics. The chief dis- advantages that men in this condition would suffer were, he thought, the absence of an established l~w, the absence of a known and impartial magistrate to settle disputes, the absence of a power sufficient to execute and enforce the judgment of the magistrate. Moved bv these inconveniences, men would enter into a social compact with each other whereby each would transfer to a third person, the government, such rights over his person and property as the government must have in order to remove these inconveniences. All other rights, privileges, and immunities he reserved, as a grantor of land conveys the fee simple to his son and reserves a life estate to himself. These reserved rights were• natural' rights because they had origi- . ilated in the condition of nature and survived the social compact." There are, in my opinion, clear indications in Part III of the Constitution itself that the doctrine of • natural rights ' had played no part in the formulation of the provisions therein. Take Arts. 33, 34 and 35 which give Parliament power to modify the rights conferred by Part III. If they were natural rights, the Consti tution could not have given power to Parliament to modify them. Therefore, I am of the view that the doctrine of 'natural rights' affords nothing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution.

The true position as I conceive it is this: where a. right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not impinge on the right of others, it

606 SUPREME COURT REPORTS

[1!159] Supp.

19JB

Fasltt'shar /I.' ath v.

can be wai\,ed provided such waiver is not forbidden bv law and does not. contrnv(\no r1uhlic polic.v or · public morals.

0

Thi Com,,,issio"" 01 !.come-tax,

In the case before 11.<, l lia\'C held that there is no foundation on facts to sustain the plea of waiver. D'1h~ "~ R~~°''""" Therefore, I would allow the appeal w·ith costs. The order of the Commissio1wr of Income.tax, Delhi, dated January 29, 1958, mupt· he set asirlc au1l all proceedings now pending for implenwntation of the order of the Union Go,·ernrnent dated rnuHt- he <pia•hed.

" s. h'. Da< J.

.TuJv 5, 1954,

•

"

St•bb• Rao J.

SuBBA RAO, .J.-I ham had the ad,·antage of perus- ing the judgments of my Lord the Chief .Justice and my learned brother, S. K. Das, J. I agree with their conclusion, but I \l'Onld prefer to express my opinion separMely in regard to the question of the applicabi litv of the dootrine of \\·ai\·er to the fundamental rights.

This case raises a most serious and important ques tion, viz., whether the doctrine of waiver operates on the fundamental rights enshrined in the Constitution, a question not confined to the immediate purpose of this litigation, but to the public in general. The ques tion is bound to arise. fr<.'quently, and the Yarying obs1·rvations already PX pressed hy the learned Judges of this Court woulcl lend ,;cope for conflicting decisions involving parties in unnecessary litigation and avoid able hardship. The quest.ion was directly raised and fully argued before us. In the circumstances, I cannot share the opinion of m.r learned brother, S. K. Das, .J., that this Court should avoid a decision on this question and lean' it to be decided in a more appropriate case. The facts have b<>en fully stated by my Lord the Chief Justice in his judgment and I need not restate them.

The learned Attorney General contended that in the American Law the principle of waiver was applied to rights created by the Constitution except in cases where the protection of the rights was based upon public policy and that, by the same analogy, if no public policy was involved, eve.n in India, the person

(1) S.C.R. SUPREME COURT REPORTS

607

v.

1958

,s. Another .subba R~o J.

affected by the infringement of the fundamental rights could waive the constitutional protect.ion guaranteed tu HashesharNatlt him. It was said that in the present case the appellant waived his fundamental right under Art. 14 of the 1'he Commissioner Constitution as the right was only in respect of his of In&ome-tas. liability to tax and he could legitimately waive it. To Delhi cS- Rajasthan appreciate this argument it would be convenient at the outset to notice the American Law on the subject. Certain rights, which are sometimes described as the Bill of lUghts, have been introduced by the Amend- ments to the Constitution of America. They declare the rights of the people of America. in respect of the freedom of religion, ::>pecch, press, assemblage and from illegal seizures. They guarantee trial by jury in certain criminal and civil matters. They give protec- tion against self-inurimination. The Fifth Amend- ment of the Constitution of the United States prescri- bes that no person shall be deprived of life, liberty or property without due process ofla.w ; nor shall private property be taken for public use without just compen- sation. The Fourteenth Amendment of the Constitu- tion introduces the rule of due process as a protection against the State action. The said amendments are intended as a protection to citizens against the action of the Union and the States. Though the rights so declared are general and wide in their terms, the Supreme Court of America, by a long course of judicial interpretation, having regard to the social conditions in that country, has given content to tho~e rights and imposed limitations thereon in an attempt to reconcile individual rights with social good, by evolving counter- balancing doctrines of police power, eminent domain, and such others. During the course of the evolution of the law, attempts were made to apply the doctrine of waiver to the provisions of the Constitution of America. American Courts applied the doctrine with great caution and in applying the same, la.id down definite principles.

The said principles were culled out from the various decisions a:nd clearly summarized in the authoritative text-books on the Constitution of America under different heads:

.-

Baslieshar l\r at h v. The Con1111i.1~iont1 rtj Jnconu~tax, Delhi Q5. Rajas//;,," 6- An0Jhe1·

Subba R110 j.

608

SUPREME COURT REPORTS

[1959] Supp.

WILLIS ON 'CONSTITUTIONAL LAW':

I. Self -incrimination :

The privilege against self-incrimination, like any

other prh-ilege, is one which may be waived.

2. Double jeopardy :

Double jeopardy is a privilege and nmy be waived

expressly or impliedly.

Immunity against ·unreasonable searches and

3. 8eizures:

The immunity is one which may be waived and by consent one can make a search and seizure reason able.

4. Jury Trial:

The United States Supreme Court ......... held that neither a jurisdictional question nor the interest of the State was involved, but only the privilege and right of the accused, and that these were subject to waiver in accordance with the nsnal rules.

5. Due Process of Law as a matter of jurisdiction:

In order to delimit personal liberty by exercis~rig social control, t.!1e branch of the government. nndert.ak ing to do so must have jurisdiction. If it does not have jurisdiction, it is taking personal liberty (life, liberty or property) without dm> process oflaw. To this rule there are no exceptions. It cannot be waived. 'COOLEY'S CONST'ITTTTIONAL LIMITATIONS': Where a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will.

In criminal cases the doctrine that a constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of property, but the trial and punishment for public. offences are not within the provinces of individual con sent or agreement. CORPUS JURIS SEOUNDUM:

It has been stated supra (p. 1050, note 32) that the doctrine of waiver extends to rights and privileges

(I) S.C.R. SUPREME COURT REPORTS

609

v.

r95B

of a.ny character, a.nd since the word 'waiver' covers every conceivable right, it is the general rule that a Baslieshar Nath person may waive any matter which affects· his pro- pcrty, and any alienable right or privilege of which he The commissioner is the owner or which belongs to him or to which he is of Income-tax, legally entitled, whether secured by contract, conferred Delhi &- Rajasthan by statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy, and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large .........

&- Another S1tbba R"o J.

As a general rule, rights relating to procedure and remedy are subject to waiver, but if a right is so fundamental in its nature as to be regarded by the state as vitally integrnted in immemorially established processes of the administration of justice, it cannot be waived by anyone.

The cases cited at the Bar illustrate the aforesaid principles. The doctrine was applied to the obligations under a contract in Pierce v. Somerset Railway (1); to deprivation of property without due process of law in Pierce Oil Corporation v. Phoenix Refining Com pany (2) and Shepard v. Barron (3 to trial by jury in Patton v. United States(') and Adams v. United States (5); and to self-incrimination in Un·ited States v. Murdoclc (6 ). It is true, as the learned counsel for the appellant - contended, that in some of the aforesaid decisions, 'observations a.re in the nature of obiter, but they clearly indicate the trend of judicial opinion in America.

)

(1) (1898) 43 L. Ed. 316; 171 U.S. 641. (2) (1922) 66 L. Ed. 85;; 259 U.S. 125. (3) (1904) 48 L Ed. IH5; 194 U. S. 553, (4) (1930) 74 L. Ed. 854; 281 U.S. 276. (5) (1942) 87 L. Ed. 268. (6) (1931) 76 L. Ed 210; 284 U.S. 141.

77

610

SUPREME COURT REPORTS

[1959] Supp.

1958

The American Law on the subject may be summariz. ed thus: The doctrine of waiver can be invoked when Boshesha• Noth the Constitutional or Statutory guarantee of a right is Th• Comv,;.;,,;0.,..not conceived in public interest or when it does not of Income-ta<. affect the jurisdiction of the authority infringing the Delhi & Rajasthan said right. But if the privilege conferred or the right created by the statute is solely for the benefit of the individual, he can waive it. But even in those ca.sea, the Courts invariably administered a caution that having regard to the nature of the right some precau tionary and stringent conditions should be applied before the doctrine is invoked or applied.

Sublia Rao j.

& Anolh"

the jurisdiction o~ the

This leads me to the question whether the funda.. mental rights enshrined ·in the Indian Constitution pcrto.in to that category of rights which could be waived. To put it differently, whether the Constitu tional guarantee in regard to tho fundamental rights relevant restricts or ousts authorities under the Constitution to make laws in derogation of the said rights or whether the said rights are for the benefit of the general public. At the outset I would like to sound a note of warning. While it is true that the judgments of the Supreme Court of the United States a.re of a great assistance to this Court in elucidating and solving the difficult problems that a.rise from time to time, it is equally necessary to keep in mind the fact that the decisions a.re given in the context of a. different social, economic and political set up, and therefore great care should be bestowed in applying those decisions to cases a.rising in India. with different social, economic and political conditions. While the principles evolved by the Supreme Court of the United States of America may in certain circum stances be accepted, their application to similar facts in India may not always lead to the same result11. It is therefore necessary to consider the nature of the fundamental rights incorporated in the Indian Con stitution, the conditions of the people for whosjl benefit and the purpose for which they were created, and the effect of the laws ma.de in viol&tion of those rights. The Constitution of India. in its preamble promises to secure to a.II citizeus justice, social, economic and

(1) S.C.R. SUPREME COURT REPORTS

611

c958

Basheshar N alh v.

political ; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity ; a.nd to promote among them all fraternity assuring the dignity of the individual and the unity of the nation. The commission1r One of the things the Constitution did to achieve the of I11eome-1ax, object is to incorporate the fundamental rights in the Delhi &- Rajastha" Constitution. They are dividedinto seven categories: (i) right to equality-Arts. 14 to 18; (ii) right to freedom-Arts. 19 to 22; (iii) right against exploita- tion-Arts. 23 and 24; (iv) right to freedom of religion -Arts. 25 to 28; (v) cultural a.nu educational rights- Arts. 29 and 30; (vi) right to property-Arts. 31, 31A and 31B; and (vii) right to Constitutional rcmedics- Arts. 32 to 35. Patanjali Sastri, J., as he then was, pointed out, in Gopalan v. The State of Madras (1 ), that fundamental rights contained in Part III of the Constitution are really rights that are still reserved to the people after the delegation of rights by the people to the institutions of Government both at the Centre and in the States created by the Constitution. Article 13 reads:-·

.;. Another Subba Rao 1

.

"(l) All laws in force in the territory of India immediately before the commencement of this Consti tution, in so far as they are inconsistent with the pro visions of this Part, shall, to the extent of such incon sistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause, shall, to the extent of the contravention, be void." This Article, in clear and unambiguous terms, not only declares that all laws in force before the com mencement of the Constitution and made thereafter taking away or abridging the said rights would be void to the extent of the contravention but also prohi bits the State from making any law taking away or abridging the said rights. Part III is therefore enact ed for the benefit of all the citizens of India, in an attempt to preserve to them their fundamental rights against infringement by the institutions created by the Collstitution ; for, without that safeguard, the objects

(I) (1950] S. C.R. 88.

612 SUPREME COURT REPORTS

[1959] Supp.

'958

•.

a,. Another Subba Rao 1:

adumbrated in the Constitution could not be achieved. Basheshar Nath For the same purpose, the said chapter imposes a limitation on the power of the State to make laws in Tiu Commissioner violation of those rights. The entire part, in my view, •I I..,;ome·tux. has been introduced in public interest, and it is not Ihlhi <f> Rajasthan proper that the fundamental rights created under the various Articles should be dissected to ascertain whe- ther any or .which part of them is conceived in public interest and which part of them is conceived for indi vidual benefit. Part III reflects the attempt of the Constitution makers to reconcile individual freedom with State Control. While in America this process of reconciliation was allowed to be evolved by the course of judicial decisions, in India, the fundamental rights and their limitations are crystallized and embodied in the Constitution itself; while in America a free hand was given to the judiciary not only to evolve the con tent of the right but also its limitations, in the Indian Constitution there is not much scope for such a pro cess. The Court cannot therefore import any further limitations on the fundamental rights other than those contained in Part III by any doctrine, such as " waiver " or otherwise. I would, therefore, hold that the fundamental rights incorporated in Part III of the Constitution cannot be waived.

·

It is said that such an inflexible rule would, in cer tain cases, defeat the very object for which the funda mental rights are created. I have carefully scrutinized the Articles in Part III of the Constitution of India, and they do not, in my view, disclose any such anomaly or create unnecessary hardship to the people for whose benefit the rights are created. Article 14 embodies the famous principle of equality before the law and equal protection of the laws, and Arts. 15 to 18 and Art. 29(2) relate to particular applications of the rule. The principle underlying these Articles is the mainspring of our democratic form of government and it guarantees to its citizens equal protection in respect of both substantive and procedural laws. If the doctrine of waiver is engrafted to the said funda mental principles, it will mean that a citizen can agree to be discriminated. When one realizes the unequal

(1) S.C.R. SUPREME COUHT REPOH.'l'S

613

N

111

1 958

·h ~

as es:~· a

positions occupied by the State and the private citizen, particularly in India where illiteracy is rampant, it is 8 easy to visualize that in a conflict between the State and a citi~en, the latter may, by fear of force or hope ne Commissioner of preferment, give up his right. It is said that in of Income-tax, such a. case coercion or influence can be established in Delhi cS· Rajasthan a. Court.of law, but in practice it will be well nigh im- possible to do so. The same reasoning will apply to Arts. 15 and 16. Art. 17 illustrates the evil repercus- sion of the doctrine of waiver in its impact on the fundamental rights. That Article in express terms forbids untouchability; obviously, a person cannot ask the State to treat him as an untouchable. Article 19 reads:-

& Another Subbo Rao J.

• ·

" (1) All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of

India;

(e} to reside and settle in any part of the territory

of India;.

(f} to acquire, hold and dispose of property ; and (g) to practice any profession, or to carry on any

occupation, trade or business." The right to freedom is the essential attribute of a citizen under democratic form of government. The freedoms mentioned in Art. 19 are subject to certain restrictions mentioned in els. (2} to (6) of that Article. So far as the freedoms narrated in sub-els. (a) to (g) of Cl. (1) of Art. 19 a.re concerned, I cannot visualise any contingency where a citizen would be in a worse posi tion than he was if he could not exercise the right of waiver. In regard to freedom to acquire, hold and dispose of property, a. plausible argument may he advanced, namely, that a citizen should have a right to waive his right to acquire, hold and dispose of pro perty; for, otherwise he might be compelled to acquire and hold his property, even if he intended to give it up! There is an underlying fallacy in this argument. The Article does not compel a. citizen to acquire, hold and

614

SUPREME COUB.T ltEPOH.TS

[1959] Supp.

v.

• •

i93B

o;. Another Subba Rao J.

dispose of property just as it does not compel a per- B•'''"har Nath son to do any of the acts covered by the other free- doms. If he does not want to reside in any part of l'he Commi,,ioner the territory of India or to make a speech or to prae o/ Income~tax. tise any profession, he is at liberty not to do any of Delhi .!; Raja,.han these things. So too, a person may not acquire the property at all or practise any profession but if he seeks to acquire property or practise any profession, he cannot be told that he has waived his right at an earlier stage to acquire property or practise the pro fession. A freedom to do a particular act involves the freedom not to do that act. There is an essential distinction between the non-exercise of a right and the exercise of a right subject to the doctrine of waiver. So understood, even in the case of the right covered by sub-cl. (f) of cl. (1), there cannot be any occasion when a citizen would be worse off than when he had no fundamental rights under the Article. The preser vation of the rights under Art. 19 without any further engrafting of any limitations than those already im- . posed under the Constitution, is certainly in the interest of the public; for, the rights are essential for the development of human personality in its diverse aspects. Some comment is made in regard to the right covered by cl. (3) of Art. 20, and it is asked that if a person has no liberty to waive the protection under that clause, he could not give evidence even if he wanted to give it in his own interest. This argument ignores the content of the right under cl. (3) of Art. 20. The fundamental right of a person is only that he should not be compelled to be a witness against him self. It would not prevent him from giving evidence voluntarily. Under Art. 21, no person shall be de prived of his life or personal liberty except according to procedure established by law and Art. 22 give_s protection against arrest and detention in certain I do not think that any situation can be con cases. ceived when a person 'Could waive this right to his advantage. Article 23(1) prohibits traffic in human beings and forced labour. It is not suggested that a person can waive this Constitutional protection. So too, _the right under Art. 24, which prohibits employment

(1) S.C.R. SUPREME COURT REPORTS

615

·

f

v.

11

to

i95B

& A>1o//,er

5110,,a Nao 1.

f ed re om o conscience an

of children in factories, cannot be waived. That apart, so far as this Article is concerned, no question Basneshar Nath of waiver can arise as a child cannot obviously waive his right under this Article. A1·ticle 25 gives guara.n- ne Co"'missioner tee for religious liberty subject to certain restrictions of Jncott,.·la", contained therein. It declares that all persons are Delhi &- t.'ajastnan d th · 1 d oqua y ent1t e o right freely to profess, practise and propagate religion. This right is certainly conceived in the public interest and cannot be waived. So too, freedom to manage religious affair8, freedom as to payment of taxes for promotion of any particular religion and freedom as to attendance at. religious instruction or religious worship in certain edncational institutions n.re all conceived to enforce the religious neutrality of the State and it cannot be suggested that they a.re not in public inter- the est. The cultural and educational minorities and their right to establish and administe1· educational institutions of their choice are given for the protection of the rights of the minorities and it cannot. be said tlrn.t. they are not in public interest. Article 31, which prohibits the State from depriving a person of his property sarn by authority of la.w or to acqnire any property without paying compensation, is intended to protect the properties of persons from arbit.rnry actions of the State. This Article is con- ceived in t.he interest; of the public and a person can- not say that he can be deprived of his property without authority of law or that his land can be acquired without 'compensation.

rights of

It is suggested that if a person, after waiving his fuuda.menta.l right to property and allowing the State to incur heavy expenditure in improving the same, turns round and claims to recover the said property, the State would be put to irreparable injury. Firstly, no such occasion should arise, as the State is not ex pected to take its citizens' property or depri,·e them of their property otherwise than by authority of law. Secondly, if the owner of a property intends to give it. to the State, the State can always insist upon convey ing to it the said property in the manner known to law.. Thirdly, ot.l1e1· remedies may be open to the

616

SUPREME COURT REPORTS

(1959] Supp.

'

l

b

h

rpJ8

fid

d h

& Another Subba Rao J.

e ma e or t e oss mcurre ,

State-on that I am not expressing any opinion-to recover compensation or damages for the improve- ' d ments ona Bash.,har N«lh avmg The co,:;,.ission'er regard to the circumstances of a particular case. These of lncome-t,x, · considerat.ions, in my view, are of no rele>ance in Delhi & Rajas11.,,. considering the question of waiver in the context of fundamental rights. By express provisions of the Con- stitution, the State is prohibited from making any law which takes away or abridges the rights conferred by Part III of the Constitution. The State is not, there fore, expected to enforce any right contrary to the CoilsLitutiona.l prohibition on the ground that the part>y waived his fundamental right. If this prohibi tion is borne in mind, no occasion can arise when the State would be prejudiced. The prejudice, if any, to the State would be caused not by the non-application of the doctrine of waiver but by its own action con trary to the Constitutional prohibition imposed on it.

It is then said that if the doctrine of waiver is to be excluded, a person can apply to the Supreme Court under Art. 32 of the Constitution for the relief provid ed therein, withdraw the petition, get the order of the Supreme Court dismissing it and then apply over again for issue of a writ in respect of the same right. The apprehension so expressed is more imaginary than real; for, it has no foundation either in fact or in law. When an application is dismissed, for whatever reason it may be-whether on merits or on admission-, the order of the Court becomes final and it can be reopened only in the manner prescribed by law. There is no scope for the application of the doctrine of waiver in such a case.

Articles 33 and 34 contain some of the Constitu tional limitations on the application and the enforce ment of .the fundamental rights. The former Article confers power on Parliament to modify the rights con ferred by Part III of the Constitution in their applica tion to facts and the latter enables iti1'.o impose restric tions on the rights conferred by that !:'art, while marti al law is in force in any area.

These two ArLiclAR, therefore, do not create funda mental rights, but impose limitations thereon and I

(1) S.C.R. SUPREME COURT REPORTS

617

the content of the 8

cannot appreciate the argument that their presence in Part III either derogates from as BS v:' at fundamental rights declared therein Or SUStainS the doctrine of waiver in its application to the said rights. The commiuionir Article 35 confers on the Parliament, the power to of Income-ta,,, legislate for giving effect to the provisions of Pa.rt III Delhi cS- Rajasthan to the exclusion of the Legislatures of the. States. This Article also does not create a fundamental right, but provides a machinery for enforcing that right.

& Another Subba Rao J.

h h N

r95a

11

A startling result, it is suggested, would flow from the rejection of the doctrine of waiver and the suggestion is sought to be illustrated by the following example: A person takes a permit for several years from the State for running a motor vehicle or an excise shop. Having enjoyed the benefit for several years and when action is proposed to be taken against him to terminate the licence, he contends that the law under which the permit was granted to him offended his fundamental rights and therefore constitutionally not valid. It is asked whether it would be open to him to say that the very Act under which the permit was granted to him was not valid in law. To my mind, this illustration does not give rise to any anomaly. Either a person can run a motor vehicle or an excise shop with licence or without licence. On the basis the law is valid, a licence is taken a:nd the motor vehicle is run under that licence and if that law offends his fundamental right and therefore void, he continues to run the busi ness without licence, as no licence is required under a valid law. The aforesaid illustration does not, there fore, give rise to any anomaly and even if it does, it does not affect the legal position.

I have considered the various provisions relating to the fundamental rights with a view to discover if there is any justification for the comment that without the aid of the doctrine of waiver a citizen, in certain cir cumstances, would be in a worse position than that he would be if he exercised his right. I have shown that there is none. Nor is there any basis for the suggestion that the State would irreparably suffer under certain contingencies; for, any resulting hardship would be its

78

'958

Baslushar Nath v.

618

SUPREME COURT REPORTS. [1959] Supp.

own making and could be avoided if it acted in accord ance with law.

& Anotb

subba Rao J. equal terms.

A large majority of our people are economically The Commission" poor, educationally backward and politically not yet Individually or even collec of. Incom~-tax. conscious of their rights. Delh• &Ra1asthantively, they cannot be pitted against the State organi zations and institutions, nor can they meet them on In such circumstances, it is the duty of this Court to protect their rights against themselves. I have, therefore, no hesitation in holding that the fuudamentn,l rights created by the Constitution are transcendental in nature, conceived and enacted in national and public interest, and therefore cannot be waived.

That apart, I would go further and hold that as section 5(1) of the Act XXX of 1947 was declared to be void by this Court in M. Ct. Muthiah v. The Com missionei· of Income-tax, Madras('), the appellant can not, by the application of the doctrine of waiver, vali date the enquiry made under the said Act. It is sug gested that there is a distinction between a case where the enactment is beyond the legislative competence of the Legislature which made it and the case where the law is unconstitutional on the ground of existence of a constitutional limitation, that while in the former case the law is null and void, in the latter case the law is unenforceable and may be revived by the removal of the limitation by an amendment of the Constitution. Ou this distinction an argument is sought to be built to the effect that as in the present case s. 5(1) of the Act XXX of 1947 was declared to be invalid only on the ground that it was hit by Art. 14 of the Constitu tion, the law must be deemed to be on the statute book and therefore the appellant was within his right to waive his constitutional guarantee. I am unable to appreciate this argument.

The scope of Art. 13(1) of tho Constitution was con sidered by this Court in Keshavan Madhava Menon v. The State of Bombay('). This Court, by a majority, held that Art. 13(1) of the Constitution does not make

{r) [1955] 2 S.C.R. t247.

(2) (r951] S.C.R. 228.

(1) S.C.R. SUPREME COURT REPORTS

619

.

existing la.ws which are inconsistent with the funda- mental rights, void ab initio, but only renders such B h h N h laws unenforceable and void with respect to the exer- as es ar al cise of the funda.mental rights on and after the date of The Com";,.ission1r commencement of the Constitution. Mahajan, C. J., of Income-tax, who was a party to tha.t decision, explained the word Delhi & Rajasthan 'void' in Art. 13(1) of the Constitution in Behram Khur- shed Pesikaka v. State of Bombay (1). He observed at page 652 thus :-

Subba Rao].

& Another

r958

"It is axiomatic that when the law-making power of a State is restricted by written fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a. nullity. Both these declarations of unconstitutiona lity go to the root of the power itself and there is ho real distinction between them. They represent but two aspects of want of legislative power. The legisla tive power of Parliament and the State Legislatures as conferred by Arts. 245 and 246 of the Constitution stands curtailed by the fundamental rights Chapter of the Constitution." This decision in clear and unambiguous terms lays down that there cannot be any distinction on prin ciple between Constitutional incompetency and Con stitutional limitation. In either case, the Act is void, though in the latter case, the pre-constitutional rights and liabilities arising under the statute are saved. This Court a.gain dealt with the meaning of the word 'void' in Bhikaji Narain Dhakras v. State of Madhya }. There the question was whether an Act Pradesh {2 which was declared void on the ground of inconsist ency with the Constitution, can be revived by any subsequent amendment to t.he Constitution removing the inconsistency. This Court answered the question in the affirmative. Das, acting C. J., observed at ps.ge 598 thus :-

"As explained in Keshavan Madhava Menon's case, the law became void not in toto or for all pur poses or for a.ll times or for all persons but only 'to the extent of such inconsistency', that is to say, to the ex tent it became inconsistent with the provisions of Part

(1) [1955] l s. c. R. 613.

(2) [1955] 2 s. c. R. 589.

620 SUPREME COURT REPORTS

[1959] Supp.

v.

•ot "

III which conferred the fundamental rights on the Basheshar Nath citizens. It did not become void independently of the existence of the rights guaranteed by Part III ...... In The Commissioner short, Article 13(1) had the effect of nullifying or ren- 0!. I•com~-tax. dering the existing law which had become inconsistent Delh~ ~ lla~astlian with Art. 19(l)(g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or subba Rao J. binding effect only with the exercise of the funda mental right on and after the date of the commence ment of the Constitution................... . It is only as against the citizens that they remained in a dormant or moribund condition. In our judgment, after the amendment of clause (6) of Art. 19 on the 18th June, impugned Act ceased to be unconstitu 1951, tional and became revivified and enforceable against citizens as well as against non-citizens."

the

it dissent from

This judgment does not say anything different from that expressed in Keshavan Madhava Menon's case (1 ) the view expressed by nor does Mahajan, C. J., in Behram Khurqhed's case (2 ). The problem that confronted the learned Judges was a different one and they resolved it by applying the doctrine of ' eclipse '. The legal position, vis-a-vis, the law declared to be void either on the ground of legislative incompetence or for the reason of constitu tional limitation, as stated in the earlier decisions, remains unshaken by this decision. So long as the inconsistency remains the law continues to be void, at any rate vis-a-vis the fundamental rights of a per son. We are not concerned in this case with the doctrine of revival; for the inconsistency of s. 5(1) of the .Act with the fundamental right under Art. 14 of the Constitution has not been removed by any amend ment of the Constitution. So long as it is not done, the said section is void and cannot affect the fundamental rights of the citizens. In M. Gt. Muthiah v. The Com missioner of Income-tax, Madras('), it was declared that s. 5(1) of Act XXX of 1947 was unconstitutional the ground that it infringed the fundamental on rights of the citizens under Art. 14 of the Constitution.

(1) [1951] S.C.R. 228.

(2) [1955) 1 S.C.R. 613.

(3) (1955) 2 S.C.R. 1247.

(1) S.C.R. SUPREME COURT REPORTS

621

U n<lor Art. 141 of the Constitution, the law declared by the Suprcre Court is binding on all the Courts in Basheshar Nalh India. It follows that the Income-tax Commissioner had no jurisdiction to continue the proceedings against The CommissioKer 0~!~0;1·!a:;. the appellant under Act XXX of 1947. If the Com- D missioner had no jurisdiction, the appellant could not ' ~ An:~:; by waiving his right confer jurisdiction on him.

v.

"

4

Subba Rao J.

The scope of·the doctrine of waiver was considered by this Court in Behram Khurshed's case (1). There a person was prosecuted for an offence under s. 66(b) of the Bombay Prohibition Act and he was sentenced to one month's rigorous imprisonment. One of the questions raised there was whether s. 13{b) of the Bombay Prohibition Act, having been declared to be void under Art. 13(1) of the Constitution in so far as it affected the consumption or use of liquid medicinal or toilet preparation containing alcohol, the prosecu- tion was maintainable for infringement of that sec- tion. The Court held that in India once the law has been struck down as unconstitutional by the ~upreme Court, no notice can be taken of it by any Court, because, after it is declared as unconst.itutional, it is no longer law and is null and void. Even so, it was contended that the accused had waived his funda- mental right and therefore he could not sustain his defence. Mahajan, C. J., delivering the judgment of the majority, repelled this contention with the following observations at page 653 :-

"The learned Attorney General when questioned about the doctrine did not seem to be very enthusias tic about it. 'Vithout finally cxpreRsing an opinion on this question we are- not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Con stitution. We that the rights described as fundamental rights are a necessary consequence of the declara.tiou in the preamble that the people of India have solemnly resolved to constitute India. into a. sovereign democratic republic and to secure to all its citizens justice, social, economic and political ; liberty of thought, expression, belief, faith and worship ;

think

(1) [1955] I S.C.R. 613.

622

SUPREME COURT REPORTS

[1959] Supp.

' " "

h

1 I '

th

r958

l"

ene

10ug

1 "

fit ti

of Income-tax,

· d" "d 1 b

equality of status and of opportunity. These funda- mental rights have not been put in tho Constitution h h I u t1mate y mere y 1or o m 1v1 ua BasesarN" v. . The Commissionu they come into operation in considering individual rights. They have been put there as a matter of Delhi& Rajasthanpublic policy and the doctrine of waiver can have no application to provisions of law which have been en- & A"0 Subba Rao J. acted as a matter of Constitutional policy. Reference to some of the articles, inter alia, Articles 15(1), 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State 'You cu.11 dis criminate', or get convicted by waiving the protec tion given under Articles ·20 and 21." On the question of waiver, Venkatarama Aiyar, J., in his judgment before review, considered tho Ameri can decisions and was inclined to take the view that under our Constitution when a law contravenes the provisions intended for the benefit of the individual, it can be waived. But the learned Judge made it clear in his judgment that the question of waiver had no bearfog to any issue of fact arising for determination in that case but only for showing the nature of the right declared under Art. l9(l)(f) and the effect in law of a statute contravening it. Das, J., as he then was, in his dissenting judgment, did not state his view on this question but expressly reserved it in the fo!lowiug words:-

" In coming to the conclusion that I ha vo, I have in a large measure found myself in agreement with the views of Venkatarama Aiyar, J., on that part of the case. I, however, desire to guard myself against being understood to agree with the rest of the obser. vations to be found in his judgment, particularly those relating to waiver of unconstitutionality, the fundamental rights being a mere check on the legisla tive power or tho effect of the dl.'claration under Art. 13(1) being 'relatively void'. On those topics I prefer to express no opinion on this occasion."

I respectfully agree with the observations of Maha jan, C. J. For the aforesaid reasons, I hold that the doctrine of waiver has no application in the case of fundamental rights under our Constitution.

(1) S.C.R. SUPREME COURT REPORTS

623

ORDER

'd

The appeal is allowed. The order of the Income Basheshar Nath Tax Commissioner, Delhi, dated January 29, 1958, is Th c v . . . I e o"'"''ss1oner set as1 e an a procee mgs now pen mg 1or Imp e- of Income-tax mentation of the order of Union Government dated Delhi & Rajastl:an July 5, 1954, a.re quashed. The appellant shall get costs of this appeal.

& Another

d"

d"

d

11

.L'

•

Subba Rao ].

N. T. VELUSW AMI THEVAR v. G. RAJA NAINAR AND OTHERS (T. L. VENKATARAMA AIYAR, P. B. GAJENDRAGADKAR and A. K. SARKAR, JJ.)

Election Dispute-Rejection of Nomination paper by Returning Officer-Validity of rejection raised before Election petition ] urisdiction of Tribunal to entertain grounds of disqualification not raised before Returning Officer-" Improperly rejected", meaning of -Representation of the People Act, r95r (43 of r95r), ss. 7, 36(2), roo(r)(c), roo(r)(d)(i).

The nomination paper of the fourth respondent who was one of the candidates for election to the Legislative Assembly of the State, was rejected by the returning officer on the ground that as he was the Headmaster of a Government-aided school he was disqualified under s. 7(d) and (e) of the Representation of the People Act, 1951, to be chosen for election. One of the voters of the constituency filed a petition praying that the election of the appellant be declared void under s. rno(1)(c) of the Act on the ground that the rejection of the nomination paper of the fourth respondent was improper because the latter had ceased to be a Headmaster at the time of his nomination and that, further, the institution was a private one. The appellant, who was the second respondent in the petition, contended that the nomination paper of the fourth respondent was rightly rejected not only on the ground put forward before the returning officer but also for the reasons that he was interested in Government contracts and that he had agreed to serve as a teacher under the District Board. The question was whether in an election petition. chal Je11ging the validity of the rejection of a nomination paper under s. rno(r)(c) of the Act, it was open to the parties to raise grounds