STATE OF WEST BENGAL V.

ANWAR ALI SARKAR AIR 1952 SC 75: CASE

COMMENT

4.1: Constitutional Law-I

Submitted By:

Tanmay Joshi

Uid No. UG 17-104

Academic Year 2018-19

Semester IV (December to May)

Submitted to:

Dr. V.P. Tiwari, Associate Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

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TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................................... 2

AIM AND OBJECTIVE ........................................................................................................ 3
RESEARCH METHODOLOGY ........................................................................................... 3
BACKGROUND.................................................................................................................... 3
FACTS ................................................................................................................................... 4
BENCH .................................................................................................................................. 4
COURT .................................................................................................................................. 4
DECISION ............................................................................................................................. 5
JUDGEMENT ........................................................................................................................ 5
ISSUES................................................................................................................................... 5
ARGUMENTS ....................................................................................................................... 5
RATIO.................................................................................................................................... 6
RELEVANCE ........................................................................................................................ 9
CONCLUSION ...................................................................................................................... 9

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AIM AND OBJECTIVE
The project aims at studying the case thoroughly and analyzing it in light of the arguments
advanced and the ratio of the majority and minority judgements delivered.

RESEARCH METHODOLOGY
The researcher has taken the judgement as the primary source of research and has also
considered articles on the subject matter. The research methodology used is doctrinal with
deductive approach and secondary sources of data are used.

BACKGROUND

By Law, Parliament and the state legislature are 3 empowered to set up a ‘special courts’ for
disposal of the cases. The States used to establish special court for speedier trial of certain
type of offences since commencement of the Constitution; even though it was not declared
that right to speedy trial is a fundamental right.

The preamble of Act reads as “An Act to provide for speedier trial of certain offences.”
Section 3 empowers the State Government to constitute special courts and section 4 provides
for the appointment of special judges. In the instant case, the constitutionality of section 5 is
questioned. Section 5(1) provides that the Special Court shall try such offences, classes of
cases, as the classes of offences or cases of classes of cases, as the State government may
direct. Section 6 to 15 provide for the special procedure that is to be followed by the court of
law. There are hence difference between the procedure as prescribed by the Special Courts
Act, 1950 and the Cr.P.C. However, it cannot be said prima facie that the absence of certain
procedures is a prejudice and betrayal of fair trial of persons subjected to it because to
eliminate certain procedure ad give speedy decision is the objective of the Act.

According to the test of reasonable classification, section 5(1) cannot be regarded as

discriminatory insofar as it authorizes the State Government to direct that certain offences or
classes of offences or classes of cases should be tried by the Special Court, the provision was
discriminatory and violative of article 14 insofar as it purported to vest in the state
government an absolute and arbitrary power to refer to a special court for trial of “any cases”.
However, it is also to be pointed out, as was pointed out by the Chief justice that referring to
“any cases” is falsifying because, these are cases which requires speedy trial and should be
categorized in the view of the preamble of the Act. He also stated that sub section could be
exercised as not to involve any discrimination but can also be exercised in a manner that can
have discrimination. When an act gives power, which may offend against a provision of the

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constitution, then that is ultra vires though the intention of the act was not such. As it was
mentioned that the enacting part must be confined to that which is the plain object and
general intention of the legislature in passing the Act, and that the preamble offers good clue
to discover what the object was. The court referred certain case laws that reveal s change of
approach marked by an increasing respect for the State’s regulatory power in dealing with
equal protection claims.

FACTS
The respondent and 49 others were charged with various offences alleged to have been
committed by them in the course of their raid as an armed gang on Jessup factory at Dum
Dum. They were sentenced to varying terms of imprisonment by the Special Court. In
exercise of power under section 5(1)1 of the Act, the Special Court gave its decision.
However, the same was challenged in the High Court by the respondent under Article 226.
High Court reasoned that the Special court had no jurisdiction and thus the trial was void
under Article 13(2) as it denied to the respondent equal protection of laws under article 14.
The High Court quashed the conviction and directed the trial of respondent and other accused
persons as according to the law. Hence, the appeal was made to the Supreme Court of India.

BENCH
Before, M. Patanjali Sastri, C.J. and Saiyid Faizal Ali, Mehr Chand Mahajan, Bijan Kumar
Mukherjea, Sudhi Ranjan Das, N. Chandrasekhara Iyer and Vivian Bose, JJ.

COURT
The case was sent to Special Court by the Government of West Bengal by a notification dated
26th January 1950. Thereafter, the respondent applied to High Court under Article 226 for
writ of certiorari. Thereafter, appeal was made to the Supreme Court of India.

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Section 5(1) of the West Bengal Special Courts Act, 1950 - A Special Court shall try such offences or classes
of cases, as the classes of offences or cases State Government may by general or special order in writing, direct.
(2) No.direction shall be made under sub-section (1) for the trial of an offence for which an accused person was
being tried at the commencement of this Act before any court but, save as aforesaid, such direction may be made
in re spect of an offence, whether such' offence was committed before or after the commencement of this Act.

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DECISION
The judgement of the court invalidating section 5(1) of the Act was held by majority in the
ratio 4:3.

JUDGEMENT
The Supreme Court held that Section 5(1) of the Act contravened Art. 14 and was void since
it conferred arbitrary power on Government to classify offences or cases at its pleasure and
the Act did not lay down any policy or guidelines for the exercise of discretion to classify
cases or offences.

ISSUES

1. Whether the West Bengal Special Courts Act, 1950 constituting special courts and
empowering State Government to refer to such courts “cases” or “offences” or
“classes of cases” or “classes of offences” is constitutional or not?
2. Whether the object and effect of the law go hand in hand or not as per the intensions
of the legislature?

ARGUMENTS

Appellants:

The learned Attorney General contended on the authority of passage in Cooleys’s

Constitutional Limitations, 8th Edition, volume 2, p. 816, that inequalities of minor
importance do not render a law invalid and that the constitutional limitations must be
treated as flexible enough to permit of practical application2. The passage found in Jeffery
Manufacturing Co. v. Blagg3.

The reasonable classification may be a test of validity of a particular piece of legislation,

it may not be the only test which will cover all cases. There must be other tests also.

When an inequality is not made with special intention of hampering the interests of any
particular person but is made in the general interest of administration then there is no
infringement of article 14.

2
Thomas M. Cooley, A Treatise on the Constitutional Limitations.
3
235 US 571 : 59 Ed. 564.

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 Respondents:

There is no indication in the section itself which restricts the power of the state
government4. The preamble cannot be the basis of classification. The preamble cannot
abridged or enlarge the meaning of the plain section.

RATIO
“… When an act gives power, which may and can offend against a provision or provisions of
the Constitution, such an act is ultra vires though it could be administered so as not to offend
against the Constitution”5

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

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

The meaning, scope and effect of article 14 of our constitution have been discussed and laid
down in the case of Chiranjit Lal Choudhary v. Union of India6. Article 14 secures all persons
within the territories of India against arbitrary law as well as arbitrary actions of law. This is
further made clear by defining “law” in Article 13 as including, among other things, any
“order” or “notification”, so that even executive order or notifications must not infringe
Article 14. Also, reasonableness of classification comes into question only in those cases
where special legislation affecting a class of persons is challenged as discriminatory. Nor

4
AIR 1952 SC 75
5
AIR 1952 Cal 150
6
1950 SCR 869

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could it arise when executive orders or notifications directed against individual citizens are
assailed as discriminatory.

Fazl Ali J. stated – The framers of the Act have merely copied the provisions of Ordinance of
1949 which was promulgated when there was no provision similar to Article 14. Moreover,
the framers of the Criminal Procedure code also had the desirability of having a speedy trial
in certain classes of cases, and with view they made four different sets of provisions for the
trial of four classes of cases. That their classification of offences for the purpose of applying
these different sets of provisions was according to offences, though in classifying the
offences fit for summary trial the experience and power of the trying magistrate was also
taken into consideration.But the impugned act has completely ignored. The principle of
classification followed in the Code and it proceeds to lay down a new procedure without
making any attempt to particularize or classify the offences or cases to which it is to apply.
Indeed sect – 5 of the Act, which is the most vital section, baldly states that the “Special
Court shall try such offences or classes of offences, as the state government may, by general
or special order in writing direct”. The Act is a verbatim copy of the earlier Ordinance which
was framed before the Constitution came into force, and article 14 could not have been before
the minds of those who framed it because Article 14 was not in existence.

Mahajan J. stated – It is no classification at all in the real sense of term as it is not based on
any characteristic which are peculiar to persons or to cases which are to be subject to special
procedure prescribed by the act. The mere fact of classification is sufficient to relieve the
statute from the reach of the equality clause of Article 14. Persons concerned in offences or
cases needing so called speedier trial are entitled to inquire ‘Why are they being made the
subject of a law which has short circuited the normal procedure of trial; Why has it grouped
them in that category and why has the law deprived them of the protection and safeguards
which are allowed in the case of accused right under the procedure mentioned in the Criminal
Procedure Code; What makes the legislature or the executive to think that the cases need
speedier trials then those of others like them. The act has left this matter entirely to the
unregulated discretion of the provincial government.

Das J. – “It matters not how lofty and laudable the motives are. The question with which I
charge myself is, can fair minded, reasonable, unbiased and resolute men, who are not
swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and
fair, regard it as that equal treatment and protection in the defense of liberties which is

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expected of a sovereign democratic republic in the conditions which obtain in India today? I
have but one answer to that. On that short and simple ground, I would decide this case and
hold the Act bad”.

There is no dispute that the question of validity of section 5. A comparison between the
language of those sections of the Code of Criminal Procedure and of the impugned act will
clearly show that the Act has gone beyond the provisions of the Code and cannot by any
means be said to be an innocuous substitute for the procedure prescribed by the Code. The
far-reaching effect of the elimination of committal proceedings cannot possibly be ignored
merely by stating that warrant procedure under the code in a way also involves a committal
by the trial Magistrate, namely to himself, for the warrant procedure minimizes the chances
of the prosecution being thrown out at the preliminary stage. The object of the Act as recited
in the preamble of the Act cannot be the basis of classification and this section 5(1) gives an
uncontrolled and unguided power of classification which may well be exercised by the state
government “with an evil eye and an unequal band”.7

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

7
Supra note 4

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RELEVANCE
The legislature has introduced special courts on many occasions through various laws,
usually with the intention to enable quick and efficient disposal of cases. But an examination
of the laws that require setting up of special courts compared to the actual numbers that have
been set up reveals the extent to which reality and intent are mismatched.

These statutes mention of ‘special’ or ‘designated’ courts or judges, that is, courts or judges
established to ensure effective trial and that have powers of district or sessions courts.
Forums like quasi-judicial bodies, tribunals, and commissions were excluded. It was found
that only three statutes provided for special courts between 1950 and 1981, whereas between
1982 and 2015, 25 statutes mandated the establishment of such courts.

The five-year period from 1982 to 1987 witnessed an unexplained spurt in the number of
laws creating special courts. A similar increase was seen between 2012 and 2015. Several
such courts were created in response to specific incidents. For instance, the 1992 securities
scam led to the Special Court (Trial of Offences Relating to Transactions in Securities) Act,
1992. The most number of special/designated courts were created between 1982 and 1992.
However, there is no categorical rationale for these developments. However, a striking
absence of number of ‘special courts’ set up provides a glaring contrast to such an objective.
In most instances where existing courts are designated as special courts, the original intent of
speedy disposal of cases seems to have been defeated. Questions of pendency have often
surfaced, thereby rendering the point of efficiency of the institution moot. Absence of
rationale in both selective insertion of provision for special courts and actual setting up of
courts appears to have rendered the notion of special court superfluous.

CONCLUSION
The case of State of West Bengal v. Anwar Ali Sarkar was decided by Hon’ble Supreme
Court of India, in the favor of Anwar Ali Sarkar, deciding the West Bengal Special Courts
Act void, on the grounds that the act was violating the Article 14 of Constitution of India.
The Act gave arbitrary, uncontrolled, unguided power to the State Government which could
be used unreasonably. The Act failed to provide a reasonable classification between “cases”,
“classes of cases”, offences” and “classes of offences”. It was held that classification of cases
as already done in the Code of Criminal Procedure was reasonable and such reasonableness
didn’t meet the classification as done in the impugned Act. Moreover, the Code already
provided the classification of cases which are to be provided with speedy trial and no
adequate need was seen of the Act. The State Government had revised the Act which was

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

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