judgement:
Civil Appeal Nos.
1408 16, 2650 67, 2498 2524, 2640 47, 1874 79, 2127 38 and 3255 of 1982.
Appeals by special leave from the Judgements and orders dated the 4th and 5th February, 1982 of the Orissa High Court in original Jurisdiction Case Nos.
1391 of 1979, 218, 320/1981, 2060, 2051/80, 35/81,525/80, 1567 and 1569/80, 1196,319, 1194, 1162, 1658 337, 2044, 1905, 1168, 1766, 1165, 1166, 336, 1659, 1662, 1884, 1161, and 1159 of 1981, 694, 1031, 945, 944, 400, 617, 375, 697, 616/81, 2015 and 2016/80, 118, 1935, 2803, 1646, 1647, 2831, 2167, 59, 1637, 602, 603, 695, 1224, 1195, 1230, 60, 1360, 1359, 1393, 1394, 604, 2152 of 1981, 846/80, 57/81, 1464/80, 595, 797, 1538, 1537 of 1981, 367 1584/80, 676, 677 of 1981, 1008/80, 1009/80, 2379/ 81, 915/80, A 235/81,236/81, 1837/80, 1839/80, 1533/79, 1649/81 and 535 of 1981.
A.B.Divan, A.K. Sen, Shankar Ghose, P.R. Mridul and S.T. Desai, Talat Ansarl, Ashok Sagar, Sandeep Thakore, Ms. Rainu Walia, D.N. Mishra, D.P. Mukherjee, J. R. Das M.C. Dhingra, Laxmi Rant Pandey, B.R. Agarwala, Miss Vijaya lakshmi Menon, U.P. Singh, B.B. Singh, B.S. Chauhan, Anil Kumar Sharma, Praveen Kumar, A.T. Patra, Vineet Kumar, A.R. Jha, M.P. Jha, R.S Sodhi, Hardev Singh, A. Minocha, Mrs. Indu Goswamy S.R. Sinha, Vinoo Bhagat, P.N. Mishra, R.R. Jain and Pramod Dayal, for the Appearing Appellants.
K. Parasaran, Sol.
C. Rath, Advocate General for the State of Orissa, section Rangarajan and M.C. Bhandari, F.S. Nariman, CSS Rao, Pramod Swarup, R.B. Mahto, U.S. Prasad, A.R Panda and R.K. Mehta for the appearing Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The usual complaint against some of tho modern fiscal statutes is that they are unduly long and therefore complex.
But here we have an orissa Act which is very short but clarity is not certainly its virtue.
The only point for determination in these 'appeals by special leave is whether the levy of additional tax under the Orissa Additional Sales Tax Act, 1975 (Orissa Act 24 of 1975) (hereinafter referred to as 'the Act ') as amended by the orissa Additional Sales Tax (Amendment) Act, 1979 (hereinafter referred to as 'the Amending Act ') is a single point levy or a multi point levy.
In order to understand the contentions of the parties it is necessary to give briefly the legislative history of the sales tax law of the State of orissa and to refer to some of its salient points.
The orissa Sates Tax Act, 1947 (orissa Act XIV of 1947) (hereinafter referred to as the Principal Act ') was enacted and brought into force in the year 1947.
It has continued to remain in force even now, although a number of changes have been introduced into it by successive legislative amendments It is a law intended for levying taxes on the sale or purchase of goods other than newspapers subject to the provisions of Entry 92 A, of List I of the Seventh Schedule to the 368 Constitution.
Section 3 B, 4, 4 A, 5, 6, 7 and 8 of the Principal Act together lay down the extent of the charge Section 4 (1) of the Principal Act read: "4 (1) Subject to the provisions of sections 3 B, S, 6, 7 and 8 and with effect from such date as the State Government may, by notification, in the Gazette, appoint, being not earlier than 30 days after the date of the said notification, every dealer whose gross turnover during the year immediately preceding the date of commencement of the Orissa Sales Tax (Amendment) Act, 1981 exceeding Rs. 50,000 shall be liable to pay tax under this Act on sales and purchases effected after the date so notified.
" This provision imposes the liability to pay tax in accordance with the provisions of the Principal Act on every dealer whose gross turnover during a fiscal year exceeds Rs 50,000 According to section 2(dd) of the Principal Act 'gross turnover ' means the total of D, 'turnover OF sales ' and 'turnover of purchases ', ' turnover of sales is defined in section 2 (i) of the Principal Act a, the aggregate of the amounts of sale prices and tax.
if any, received and receivable b, a dealer in respect of sale or supply of goods other than those declared under section 3 B of the Principal Act and 'turnover of purchases ' is defined in section 2 (j) of the Principal Act as the aggregate of the amounts of purchase prices paid and payable by a dealer in respect of the purchase or supply of goods or classes of goods declared under section 3 B of the Principal Act.
Sub sections (2) to (5) of section 4 of the Principal Act deal with the point of time at which such dealer would become liable to pay tax, the period during which he would remain liable to pay the tax and the time at which he would cease to be liable to pay tax after his annual gross turnover has failed to exceed Rs. 50,000.
Unless he is a casual dealer as defined in section 2(bb) of the Principal Act who is liable to pay tax irrespective of his gross turnover as provided in section 4 A of the Principal Act, every dealer would become liable to pay tax under the Principal Act only wh n his gross turnover exceeds Rs. 50,000, otherwise not.
The expression 'dealer is defined in section 2 (c) of the Principal Act as a person who carries on the business of purchasing, selling, supplying or distributing, goods, directly or otherwise, whether for cash, or for deferred payment or for commission, remuneration or other valuable consideration and includes others mentioned in that clause It may be noted that this definition does not specify the extent of the gross turnover of such person as a 369 qualification for being treated as a dealer.
every person who carries A on the activities specified in section 2 (c) of the Principal Act is a dealer for purposes of the Principal Act.
Section 2(f) of the Principal Act defines the expression 'registered dealer ' as a dealer registered under it.
Section 9 of the Principal Act imposes the obligation on every dealer who is liable to pay tax under section 4 of that Act to register himself and to obtain a registration certificate.
On such of registration he becomes a registered dealer.
Section 9 B (l) (a) of the Principal Act lays down That no person who is not a registered dealer shall collect in respect of any sale by him any amount by way of tax under the Principal Act and a registered dealer can collect such tax only in accordance with the said Act and Rules made thereunder.
Section 9 A of the Principal Act, however, provides for voluntary registration of a dealer whose annual gross turnover exceeds Rs 10,000 even though he is not liable to pay tax under section 4 of that Act and every such dealer on such registration is entitled to collect tax under that Act and to pay it to Government as long as such registration remains in force.
There are corresponding provisions made in section 9 C of the Principal Act for provisional registration of certain other kinds of dealers Section IO of the Principal Act provides for the publication of the list of registered dealers Any other dealer cannot collect tax from his customers.
There are other provisions in the Principal Act providing for the machinery for assessment and recovery of the tax due under it.
Before proceeding further it is necessary to quote section 8 of the Principal Act.
It reads: "8.
Power of the State Government to prescribe points at which goods may be taxed or exempted.
Notwithstanding anything to the contrary in this Act, the State Government may prescribe the points in the series of sales or purchases by successive dealers at which any goods or classes or descriptions of goods may be taxed or exempted from taxation and in doing so may direct that sales to or purchases by a person other than a registered dealer shall be exempted from taxation: Provided that the same goods shall not be taxed at more than one point in the same series of sales or purchases by successive dealers.
Explanation Where in a series of sales, tax is prescribed tc be levied at the first point, such point, in respect of 370 goods despatched from outside the State of Orissa shall mean and shall always be deemed to have meant the first of such sales effected by a dealer liable under the Act after the goods are actually taken delivery of by him inside the State of orissa.
" The proviso to section 8 of the Principal Act which is of considerable significance in these cases clearly lays down that the same goods cannot be taxed under the Principal Act at more than one point in the same series of sales (or purchases) by successive dealers.
Section 8 of the Principal Act which begins with a non obstante clause is given an over riding effect over the rest of the provisions of the Principal Act and the proviso found in it also naturally has a similar over riding effect.
Levy of tax at a single prescribed point and prohibition against levy of tax at more than one point is an important characteristic of The scheme of the Principal Act and such prescription was introduced deliberately by the State Legislature to prevent hardship to consumers which would be caused by the gradual increase of prices as the goods pass from dealer to dealer before they reach the consumer which would be the natural result of a multi point levy of sales tax and also to make collection of sales tax more convenient.
Even though the language of section 8 of the Principal Act by itself was sufficient to prevent a multi point levy and to prescribe a single point levy in order to emphasis the principle of single point levy of tax, section 4 (1) of the Principal Act was expressly made subject to section 8.
When such was the position, with a view to augmenting the resources of the State Government the Orissa Legislature enacted the Act in the year 1975 levying additional sales tax on certain classes of dealers The Act as it was originally passed read thus: "ORISSA ACT 24 OF 1975 THE ORISSA ADDITIONAL SALES TAX ACT, 1975 AN ACT TO PROVIDE FOR LEVY OF ADDITIONAL TAX ON SALE OR PURCHASE OF GOODS IN ORISSA Be it enacted by the Legislature of the State of Orissa in the Twenty sixth Year of the Republic of India, as follows: 371 1.
(1) This Act may be called the Orissa Additional A Sales Tax Act.
(2) It shall extend to the whole of the State of orissa.
(3) It shall be deemed to have come into force on the Ist day of April, 1975.
(1) The tax payable by a dealer for a year under the orissa Sales Tax Act, 1947 (hereinafter referred to as the said Act) shall be increased by an additional tax at the rate of C (a) two percent of the tax, if his gross turnover for that year does not exceed one lakh of rupees; (b) three percent of the tax, if his gross turnover for that year exceeds one lakh of rupees but does not exceed five lakhs of rupees; D (c) five percent of the tax, if his gross turnover for that year exceeds five lakhs of rupees Provided that where in respect of declared goods the tax payable by such dealer under the said Act together with the additional tax payable under this sub section exceeds the maximum percentage of the sale or purchase price thereof specified, from time to time, under clause (a) of section 15 of the , the rate of additional tax in respect of such goods shall be reduced to such an extent that the tax and the additional tax together shall not exceed such maximum percentage of the sale or purchase price of such goods.
Explanation "Declared goods" shall have reference to declared goods as defined in the .
(2) The provisions of the said Act shall, mutatis mutandis apply in relation to the said additional tax as they apply in relation to the tax payable under the said Act.
(3) Notwithstanding anything contained in the said Act, no dealer referred to in sub section (I) shall be entitled to collect the additional tax Payable under this Act.
372 3.
(1) Any dealer who collects the additional tax pay able under this Act, in contravention of the provisions of sub section (3) of section 2 shall be punishable with fine which may extend to one thousand rupees.
(2) No Court inferior to that of a Judicial Magistrate of the first class shall try an offence under this Act.
(1) The State Government may make rules for carrying out the purposes of this Act.
(2) All rules made under this Act shall, as soon as may be after they are made, be laid before the State Legislature for a total period of fourteen days which may be comprised in one session or in two or more successive sessions and if during the said period the State Legislature makes modifications, if any, therein, the rules shall thereafter have effect only in such modified form; so, however, that such modifications shall be without prejudice to the validity of any thing previously done under the rules.
" A reading of the Act shows that it was virtually in the nature of an amendment of the Principal Act.
It, however, followed the pattern of the Tamil Nadu Additional Sales Tax Act.
1970, the validity of which arose for consideration in section Kodar vs State of Kerala( ').
The additional sales tax payable by the dealers specified in clauses (a), (b) and (c) of section 2 of the Act as it was originally enacted was in the nature of an enhancement of their liability to pay tax under the Principal Act by the specified percentages but they were prohibited from passing on the incidence of addition tax to the purchasers.
The Statement of objects and Reasons attached to the Bill which was latter on enacted as the Act read thus: "STATEMENT OF OBJECTS AND REASONS To mobilise additional resources for the Plan, it has been proposed to impose an additional sales tax in addition to the sales tax payable by dealers under the general sales tax law of the State.
This additional sales tax may be said to be in the nature of surcharge on the State sales tax payable by dealers.
373 2.
The proposed legislative measure contains a pro vision that the incidence of the tax cannot be passed on to consumers.
Perhaps, a view may be taken that the proposed additional tax would be added to the price of goods sold and thereby jack up prices.
But as this additional sales tax would be on a graded scale and a specific provision is proposed to be made in the Act debarring dealers to pass on the incidence to consumer, it will be difficult for dealers to pass on the incidence of this tax to consumers.
It may not be possible to increase the price of goods by an amount equivalent to the amount of additional sales tax as there is statutory price control in respect of certain goods and where there is no statutory price control, there is keen competition between dealers for sale of goods.
Moreover, the rate of the additional sales tax on big dealers will be more than that in the case of small dealers.
To meet the competition from the small dealers, the big dealers cannot increase the price cf goods so as to recoup themselves, of the amount of additional sales tax paid by them.
Moreover, if dealers increase the price of goods so as to recoup themselves, they will be liable to pay more sales tax under the general sales tax law of the State and their turnover will also increase as a result of which the rate of additional sales tax may be more.
Besides, if they increase the price exceeding the amount of additional sales, their profit will increase as a result of which they will be liable to pay more income tax.
It may not, therefore, be a pragmatic step to pass on the incidence of this new tax to consumers.
The Bill seeks to achieve the above objective.
" F The contents of the above Statement of objects and Reasons chow the concern of the mover of the Bill regarding the likely increase in the burden on the consumers by reason of the probable escalation in the prices of Bonds as a result of the new levy.
The provisions of the Act set out above could have very well been incorporated in the Principal Act itself by the introduction of sections 2 and 3 set out above in the Principal Act.
But the State Legislature following the pattern of the Tamil Nadu Act referred to above passed a separate Act.
It was, however, made clear by section 2 (2) thereof that the provisions of the Principal Act would mutatis 374 mutandis apply in relation to the additional tax as they apply in relation to the tax payable under the Principal Act.
The additional tax thus levied being only an enhancement of the tax payable under the Principal Act by a specified percentage, it did not affect the general scheme of the Principal Act including the principle of single point levy contained in section 8 of the Principal Act.
The two Acts i.e. the Principal Act and the Act as it was originally enacted had to be read together in order to make the provisions contained in the Act effective.
This position continued up to the corning into force of the Amending Act on April 1 1979 by which sections 2 and 3 of the Act were substituted by new sections 2 and 3.
After such Amendment, sections 2 and 3 of the Act read thus "2.
In this Act, unless the context otherwise requires (a) "declared goods" shall have the same meaning as in clause (c) of section 2 of the ; (b) words and expressions used but not defined shall have the same.
meanings as are respectively assigned to then in the Orissa Sales Tax Act, 1947 (hereinafter referred to as the said Act).
(1) Every dealer shall, in addition to the tax payable by him for a year under the said Act, be liable to pay additional tax at such rate not exceeding one percent of his gross turnover for that year, as may be notified, from time to time, by the State Government; Provided that no additional tax as aforesaid shall be payable on that part of the gross turnover which relates to sale and purchase of declared goods: Provided further that the State Government may, by notification, subject to such conditions and restriction, if any, exempt any class of dealers or the turnover relating to any goods or class of goods from the levy of the additional tax and likewise withdraw any such exemption.
(2) The provisions of the said Act shall, mutatis mutandis apply in relation to the said additional tax as they apply in relation to the tax payable under the said Act." 375 Sections 1 and 4 of the Act however remained as before.
After the above amendment, section 2 took the form of the interpretation clause of the Act.
Clause (a) of section 2 defined the expression 'declared goods ' and clause (b) provided that the words and expressions used but not defined shall have the same meanings as are respectively assigned to them in the Principal Act.
Section 3, however, altered the pattern of levy of additional sales tax from what it was when the Act was passed in 1975.
The object of the alteration is set out in the statement of objects and Reasons attached to the Bill which later became the Amending Act.
It read thus: 'STATEMENT OF OBJECT AND REASONS With a view to rationalising the scheme of additional sales tax it is proposed to amend the Orissa Additional Sales Tax Act, 1975 to facilitate wider application of first point levy and introduction of flexibility in the implementation of the Act.
2.The Bill seeks to achieve the above objectives".
Section 3 of the Act after the amendment provided that every dealer shall, in addition to the tax payable by him for a year under the said Act, be liable to pay additional tax at such rate not exceeding one percent of his gross turnover (excluding the gross turnover which relates to sale and purchase of declared goods) for that year as may be notified from time to time by the State Government.
By a notification dated March 23, 1979, the State Government notified the rate of additional tax payable under section 3 of the Act as amended in 1979 at one half percent of the annual gross turnover.
The prohibition of the passing of the additional, tax which existed formerly was removed.
One significant change which was brought about by the amendment was that the additional tax instead of being an enhancement of the tax payable by a dealer by a certain percentage became a percentage of the annual turnover of a dealer.
Both the Statement of objects and Reasons and the Amending Act were however, silent on the question whether the additional tax payable after the amendment was a multi point levy or single point levy.
They were also silent on the class of dealers who were liable to pay additional tax.
Controversies arose between the Department and many of the assesssees on the construction of section 3 of the Act after its amendment.
The stand of the State Government was that every dealer was liable to pay additional tax on his annual gross 376 turnover irrespective of its taxability under the Principal Act.
The State Government claims that the new levy was in the nature of a multi point tax.
A number of writ petitions were filed before the High Court of Orissa raising a number of contentions including some relating to the constitution ality of the amended Act.
All the petitions were dismissed by the High Court.
The main judgment was delivered in O.J. Case No. 1391 of 1979, filed by M/s. Ashok Service Centre.
Following that judgment, the other writ petitions were dismissed.
These appeals are filed against the decision of the High Court with the special leave of this Court.
In these appeals, the only contention pressed before us relates to the applicability of section 8 of the Principal Act which prohibits the levy of tax at more than one point in the same series of sales or purchases by successive dealers in the State of Orissa to the additional tax leviable under the Act as amended in 1979.
The High Court negatived the said contention on the ground that since both the Principal Act and the Act as amended in 1979 had been passed by a competent legislature providing for a different base and for a different scheme and because they happened to be two independent Acts, it was not open to the assessees to rely upon any of the provisions of the Principal Act relating to incident and levy of tax in support of their contention.
The High Court observed in para 8 of the judgment thus: "8.
On an analysis of Section 3 (1) of the Act it is also clear that the legislative intention is to raise a tax in addition to the liability under the 1947 Act.
If the liability under the 1947 Act in respect of a dealer is taken as `X '.
Section 3 (1) of the 1975 Act creates an additional liability which has to be within one percent of the gross turnover for that year (the State Government at present has prescribed half percent which may be taken as 'Y '). 'Y ' is an additional liability and, therefore, has been nomenclatured as additional tax.
Under the 1947 Act, the dealer 's liability to sales tax is on the basis of his taxable turnover which is determined in the manner prescribed by that Act.
Under the 1975 Act, the liability of the dealer is with reference to his gross turnover of the year.
It was competent for the sovereign Legislature to adopt either of the methods for raising sales tax.
While sustaining the scheme under the 1947 Act, it could also raise an additional tax on the gross 377 turnover and combine the two for the purposes of computation as also recovery.
In the premises, the submission of Mr. Agarwala on this score has also no force.
" The High Court was of opinion that the Act being an independent Act it could not be read subject to the provisions of the Principal Act.
It may, however, be noticed that there is no reference in the judgment of the High Court to the effect of the provisions of section 3 (2) of the Act which forms part of the charging section and provides that the provisions of the.
Principal Act shall mutatis mutandis apply in relation to the additional tax levied under the Act as they apply in relation to the tax payable under the Principal Act.
There is also no reference in the judgment of the High Court to section 8 of the Principal Act.
It is urged on behalf of the appellants before us depending upon section 3 (2) of the Act that wherever there is no express provision to the contrary in the Act, the provisions of the Principal Act including those relating to incidence and levy of tax should apply to the additional tax also.
On behalf of the State Government, it is urged that section 3 (2) of the Act is intended only to make those provisions of the Principal Act relating to the assessment and collection of tax applicable to the proceedings under the Act and no part of sections 3 B, 4, 4 A, 5, 6, 7 and 8 of the Principal Act would be applicable to the levy of additional tax.
We may straight away say that the contention of the Department leads to some anomalies.
Section 3 (1) of the Act states that every dealer shall, in addition to the tax payable by him for a year under the Principal Act liable to pay additional tax at such rate not P exceeding one percent of his gross turnover for that year as may be notified from time to time by the State Government.
If as stated in section 2 (b) of the Act, we define the expression 'dealer ' in section 3 (1) of the Act as provided in section 3 (c) of the Principal Act, and we do not apply the qualification of the minimum annual gross turnover of Rs. 50,000 stipulated in section 4 (1) of the Principal Act, then irrespective of his annual gross turnover every person who carries on the business of purchasing, selling, supplying or distributing goods directly or otherwise would become liable to pay additional tax even though he may not be liable to pay any tax under the Principal Act.
If he is not registered as a dealer on account of his annual gross turnover being less than the prescribed 378 minimum, he would not be able to collect the additional tax in view of section 9 B of the Principal Act which says that no person other than a registered dealer shall realise any amount by way of tax under the provisions of the Principal Act.
That could never have been the intention of the State Legislature.
The 'dealer ' referred to in section 3 (1) of the Act should be understood as a 'dealer ' who is liable to pay tax under the Principal Act as provided in section 4 (1) of the Principal Act.
Next 'gross turnover means the total of 'turnover of sales ' and 'turnover of purchase '.
If under section 3 (1) of the Act, liability to pay additional tax just on the 'gross turnover ' a dealer has to pay additional tax on the aggregate of the purchases of goods declared under section 3 B of the Principal Act and also on the turnover of sales of other goods.
To determine the gross turn over it becomes necessary to read section 3 B of the Principal Act into the Act although the said section deals with the liability of certain class of goods to tax under the Principal Act.
These anomalies show that the contention of the Department that only machinery provisions of the Principal Act become applicable to the proceedings under the Act cannot be accepted.
Section 3 (2) of the Act which makes the provisions of the principal Act mutatis mutandis applicable to the levy of additional tax is a part of the charging provision of the Act and it does not say that only those provisions of the Principal Act which relate to assessment and collection of tax will be applicable to the proceedings under the Act.
Before considering what provisions of the Principal Act should be read as part of the Act, we have to understand the meaning of the expression 'mutatis mutandis '.
Earl Jowitt 's 'The Dictionary of English Law (1959) ' defines 'mutatis mutandis ' as 'with the necessary changes in points of detail '.
Black 's Law Dictionary (Revised 4th Edn. 1968) defines 'mutatis mutandis ' as 'with the necessary changes in point of detail, meaning that matters or things are generally the same, but to be altered when necessary as to names, offices, and the like.
Houseman vs Waterhouse, 191 App.
850, , 251. ' In Bouvier 's Law Dictionary (3rd Revision, Vol. II), the expression 'mutatis mutandis ' in defined as '(T)he necessary changes.
This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like.
Extension of an 'earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the 379 thing changed, subject of course to express provisions made in the later Act.
Section 3 (2) of the Act shows that the State Legislature intended not to depart substantially from the Principal Act except with regard in matters in respect of which express provision had been made in the Act.
The assumption made by the High Court that the Act was an independent Act having nothing to do with the Principal Act is not correct.
The Act only levied some extra sales tax in addition to what had been levied by the Principal Act.
The nature of the taxes levied under the Act and under the Principal Act was the same and the Legislature expressly made the provisions of the Principal Act mutatis mutandis applicable to the levy under the Act.
The additional sales tax was in the nature of a surcharge over and above what was due and payable by assessee under the Principal Act.
The Act, though it had a long title, a short title and other usual features of every statute, could not be, considered as an independent statute.
It had to be read together with the Principal Act to be effective.
In the circumstances the conclusion reached by the High Court that the two Acts were independent of each other was wrong.
We are of the view that it is necessary to read and to construe the two Acts together as if the two Acts are one, and while doing so to give effect to the provision, of the Act which is a later one in preference to the provisions of the Principal Act wherever the Act has manifested an intention to modify the Principal Act.
The following Observations of Lord Simonds in Fendoch Investment Trust Co. vs Inland Revenue Commissioners(1) made in connection with the construction of certain fiscal statutes are relevant here.
He said at page 144: "My Lords, I do not doubt that in construing the latest of a series of Acts dealing with a specific subject matter, particularly where all such Acts are to be read as one, great weight should be attached to any scheme which can be seen in clear outline and amendments in later Acts should if possible be construed consistently with that scheme".
Originally when the Act was passed in 1975, the Act levied an additional tax on dealers whose annual gross turnover did not exceed rupees one lakh as two percent of the tax payable by them under the Principal Act, on dealers those gross turnover exceeded rupees one lakh but did not exceed rupees file lakhs at three percent 380 of the tax payable under the Principal Act and on dealers whose gross turnover exceeded rupees five lakhs at five percent of the tax payable under the Principal Act.
Such additional tax levied under the Act could not be passed on to consumers.
The object of the amendment made in 1979 was, as can be seen from the Statement of Objects and Reasons, to rationalise the scheme of additional sales tax and to facilitate 'wider application of first point levy ' and to introduce flexibility in the implementation of the Act.
What the words 'wider application of first point levy ' mean is not very clear the words 'first point levy ' is no doubt a single point levy.
Even a last point levy in the same series of sales is a single point levy which is distinguishable from a multi point levy.
If the State Legislature wanted that the new levy i.e. the additional tax should be a multi point tax which had to be paid by every dealer irrespective of the fact that the entire annual gross turnover in his hands may not be liable to bear the tax under the Principal Act, it would have expressly said so as it would have amounted to a substantial departure from the general scheme of the Principal Act as set out in the proviso to section 8 of thereof which stipulated that no goods should suffer tax which could be passed on to the purchaser at more than one point in the same series of sales or purchases by successive dealers to which the people of the State of Orissa had become accustomed.
If the object of the amendment was to make the additional tax a multi point levy, nothing was easier than using the appropriate words in the Act by excluding the application of section 8 of the Principal Act expressly in section 3 (2) of the Act.
In the absence of any such words in the Act, by reason of section 3 (2) of the Act, we have to construe that section 8 of the Principal Act which is given an overriding effect by the use of the non obstante clause is applicable to the levy of additional tax also.
This construction receives support from the use of the word 'additional ' in section 3 (1) which involves the idea of joining or uniting one thing to another so as thereby to form one aggregate (see Black 's Law Dictionary).
The gross turnover referred to therein should, therefore, be understood as that part of the gross turnover which is taxable under the Principal Act.
The definition of the expression 'gross turnover ' in section 2 (dd) of the Principal Act does not present any insurmountable difficulty as the words defined in section 2 of the Principal Act have to be given the meaning as indicated in that section unless there is anything repugnant in the subject or context.
In view of the foregoing, section 3 (1) of the Act has to be read as: 381 "Every dealer (who is liable to pay tax under the Principal Act) shall, in addition to the tax payable by him for a year under the said Act, be liable to pay additional tax at such rate not exceeding one percent of his gross turnover (which is taxable under the Principal Act) for that year, as may be notified from time to time by the State Government.
Provided . . . . . . . . Provided . . . . . . . .
If section 3 (1) is so read there would not be any anomaly but on the other hand it would effectuate the intention of the State Legislature.
We are aware of the principal that a statute has to be interpreted according to the words used therein and if the word used therein are clear it is not open to the Court to go in search of the intention of the Legislature and to arrive at a meaning different from what the words of the statute convey.
When the Act is read as a whole it becomes inevitable that it bas to be read together with the Principal Act.
Craieson Statute Law (7th Edn ) says at page 223 that 'where the later of two Acts provides that the Who are to be read together every part of each Act must be construed as if the two Acts had been one, unless their is some manifest discrepancy making it necessary to hold that the later Act has to some extent modified the provisions of the earlier Act '.
When section 3 (1) of the Act read in the light of subsection (2) thereof, section 8 of the Principal Act which prescribes a single point levy becomes immediately attracted.
It was, however, argued on behalf of the Department that since section 8 of the Principal Act opened with The words 'notwithstanding anything to the contrary in this Act ', the operation of section 8 should be confined to the tax payable under the Principal Act and could not be extended to the additional tax payable under the Act.
We do not find any merit in this submission, since the words 'this Act ' were used in section 8 because when the Principal Act was enacted section 8 could apply only to the liability under the Principal Act.
Now by reason of section 3 (2) of the Act, section 8 has been made also applicable to the levy, assessment and collection of the additional tax under the Act.
If we accept the argument of the Department even section 13 of the Principal Act which provides for the machinery for ff recovery of tax and penalty would become unavailable for collecting the additional tax under the Act as section 13 also uses the words 382 'tax payable under this Act '.
Likewise, many other provisions of the Principal Act which are necessary for making the levy under the Act effective will become inapplicable.
The above contention has therefore to be rejected.
Lastly it was contended on behalf of the State Government that section 3 (1) of the Act should be construed as a complete and self contained code on the charge created by the Act in view of the second proviso contained in it which conferred powers of exemption OD the State Government.
That proviso only empowers the State Government to exempt certain dealers or transactions pertaining to certain goods from the levy of additional tax.
It does not in any way curtail the effect of sub section (2) of section 3 of the Act which forms an integral part of the charging section.
Consequently any exemption granted under section 6 and section 7 of the Principal Act will also be applicable in the case of levy of additional tax under the Act.
In view of the foregoing, we hold that any dealer is not liable to pay tax under the Principal Act either by reason of his not having sufficient gross turnover or by reason of exemption given under section 7 of the Principal Act, is not liable to pay additional tax under the Act.
If a dealer is exempted by the State Government under the second proviso to section 3(1) of the Act he is also not liable to pay the additional tax under the Act.
If the turnover of a dealer relating to any sales or purchases of goods is exempted under section 6 of the principal Act, such turnover cannot be subjected to any levy of additional tax under the Act by virtue of section 3 (2) of the Act.
The Government Notifications S.R.O. No. 410/79 dated March 23, 1979 issued under the second proviso to section 3 (1) of the Act exempting the turnover relating to goods whose turnover is exempted from payment of tax under section 6 of the Principal Act from payment of additional tax under the Act is, therefore, redundant.
The turnover in respect of goods whose sales or purchases are not taxable under the Principal Act in the hands of any dealer by reason of section 8 of the Principal Act is not liable to the payment of additional sales tax under the Act.
The turnover in respect of sales and purchases of declared goods is not taxable under the Act by reason of the first proviso to section 3 (1) of the Act.
Any other turnover which is exempted by the State Government under the second proviso to section 3 (1) of the Act is also not taxable under 383 the Act.
The levy of the additional tax on the gross turnover of a dealer under section 3 of the Act is subject to these conclusions.
In the result the appeals succeed.
The judgment of the High Court in each of these cases is set aside.
lt is hereby declared that the additional tax under the Act can be levied and collected under section 3 of the Act in accordance with our conclusions set out in the previous paragraph There shall, however, be no order as to costs.
P.B.R. Appeals allowed.

summary/full:
The proviso to section 8 of the Orissa Sales Tax Act, 1947 (Principal Act) lays down that the same goods cannot be taxed under it at more than one point in the same series of sales or purchases by successive dealers.
In 1975 the State Legislature enacted the Orissa Additional Sales Tax Act (the Act) levying additional sales tax on certain classes of dealers.
In 1979 the State Legislature amended the Act by the Orissa Additional Sales Tax (Amendment) Act, 1979 by which sections 2 and 3 of the Act were substituted by new sub sections 2 and 3.
After the amendment section 3 of the Act provided that every dealer shall, in p addition to the sales tax payable by him for 3 year under the said Act be liable to pay additional tax at such rate not exceeding one per cent of his gross turnover (excluding the gross turnover which relates to sale and purchase of declared goods) for that year as may be notified from time to time by the State Government.
By a notification the State Government notified the rates of additional tax payable under section 3 of the Act as amended in 1979 at one half per cent of the annual gross turnover.
Sub section (2) of section 3 made it clear that the provisions of the Principal Act would mutatis mutandis apply in relation to the additional tax as if they apply in relation to the tax payable under the Principal Act.
Construing section 3 of the Act after its amendment, the State Government took the view that the new levy was in the nature of a multi point tax and that every dealer was liable to pay additional tax on his annual gross turnover irrespective of its taxability.
under the Principal Act.
364 In a number of writ petitions filled before the High Court by dealers it was A contended that section 8 of the Principal Act which prohibited the levy of tax at more than one point in the same series of sales or purchases by successive dealers was applicable to the additional tax leviable under the Act as amended in 1979.
Without referring to the effect of the provisions of section 3 of the Act the High Court held that since the Principal Act and the Act as amended in 1979 had been passed by a competent legislature providing for a different base and for a different scheme it was not open to the assessee to rely upon any of the provisions of the Principal Act relating to incidence and levy of tax.
In appeal to this Court it was contended on behalf of the appellants that wherever there was no express provision to the contrary in the Act the provisions of the Principal Act, including those relating to the incidence and levy of tax should apply to the additional tax also.
The Department on the other hand contended that section 3(2) of the Act was intended only to make those provisions of the Principal Act relating to assessment and collection of tax applicable to proceedings under the Act and no part of section 33 to section 8 of the Principal Act would be applicable to the levy of additional tax.
Allowing the appeals, ^ HELD: If the contention of the Department that only the machinery provisions of the Principal Act become applicable to the proceedings under the Act is accepted it would lead to many anomalies.
[377 F] Section 8 of the Principal Act which begins with a non obstante clause is given an over riding effect over the rest of the provisions of the Principal Act.
Levy of tax at a single prescribed point and prohibition against levy of tax at more than one point is an important characteristic of the scheme of the Principal Act.
[370 C D] The Act was virtually in the nature of an amendment of the Principal Act.
The additional sales tax payable by dealers specified in section 2(a), (b) and (c) as originally enacted was in the nature of an enhancement of their liability to pay tax under the Principal Act by specified percentages but they were prohibited from passing on the incidence of additional tax to the purchasers.
[372 E F] Although the provisions of the Act could have been incorporated in the Principal Act itself, by the introduction of sections 2 and 3 in the Principal Act, the State Legislature passed a separate Act.
But it was made clear by section 3(2) of the Act that the provisions of the Principal Act would mutatis mutantis apply in relation to the additional tax as they apply in relation to the tax payable under the Principal Act.
The two Acts, i.e., the Principal Act and the Act as originally enacted had to be read together in order to make the provisions contained in the Act effective.
This position continued up to the coming into force of the Amending Act on April 1, 1979 by which sections 2 and.
3 of the Act wore substituted by new sections 2 and 3.
[373 G H, 374 A C] 365 With the substitution of section 3(2) in 1979 the prohibition of passing of the additional tax, which existed formerly was removed.
Secondly the additional tax, instead of being an enhancement of the tax payable by a dealer by a certain percentage, became a percentage of the annual turn over of a dealer.
Both the statement of objects and reasons and tho Amending Act were silent on the question whether the additional tax payable after the amendment was a multi point levy or a single point levy as also on the classes of dealers liable to pay additional tax.
[375 F H] 2.
The view of the High Court that the two Acts were independent of each other was not correct.
It is necessary to read and to construe the Principal Act and the Act together as if the two wore one, and while doing so to give effect to the provisions of the Act which is a later one in preference to the provisions of the Principal Act wherever the Act has manifested an intention to modify the Principal Act.
[377 B C] The definition of mutatis mutandis given in legal dictionaries is "with the necessary changes in points of detail meaning that matters or things are generally the same, but to be altered when necessary" as to names, offices and the like.
[378 E F] Extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject to express provisions made in the later Act.
[378 H, 379 A] In the instant case section 3(2) of the Act shows that the State Legislature intended not to depart substantially from the Principal Act except with regard to matters in respect of which express provision had been made in the Act.
Though the Act had the usual features of a state, it could not be considered as an independent statute but must be read together with the Principal Act to be effective.
[379 A C] Earl Jowitt 's The Dictionary of English Law (1959); Black 's Law Dictionary (revised 4th edn.
(1968) Bouvier 's Law Dictionary (3rd Revision) Vol.
II, referred to The additional tax levied under the Act could be passed on to consumer after the amendment.
The object of the amendment made in 1979 as set out in the statement of objects and reasons was to rationalise the scheme of additional sales tax and to introduce flexibility in The implementation of the Act.
If the object of the amendment was to make the additional tax a multi point levy, nothing was easier than using the appropriate words in the Act by excluding the application of section 8 of the Principal Act expressly in section 3(2) of the Act.
In the absence of any such words in the Act, by reason of section 3(2) of the Act section 8 of the Principal Act must be construed as being applicable to the levy of an additional tax also.
The gross turnover referred to in section 3(1) should, therefore, be understood as that part of the gross turnover which is taxable under the Principal Act.
[380 A G] If section 3(1) is read as "every dealer (who is liable to pay tax under the Principal Act) shall in addition to the tax payable by him for a year under the 366 said Act, be liable to pay additional tax at such rate not exceeding one per cent of his gross turnover which is taxable under the Principal Act) for that year as may be notified from time to time by the State Govt. " there would not be any anomaly.
On the other hand it would effectuate the intention of the legislature.
[381 A B] It is true that if the words used in a statute are clear it is not open to the Court to go in search of the intention of the legislature and to arrive at a meaning different from what the words of the statute convey.
When the Act is read as a whole it becomes inevitable that it has to be read together with the Principal Act.
It is a well settled principle of construction that where the later of the two Acts provides that the two are to be read together every part of each Act must be construed as if the two Acts had been one, unless there is some manifest discrepancy making it necessary to hold that the later Act has, to some extent, modified the provisions of the earlier Act.
When section 3(1) of the Act is read in the light of sub section 2 thereof, section 8 of The Principal Act which prescribes a single point levy becomes immediately attracts.
[381 C f] The argument that since section 8 of the Principal Act opens with the words "notwithstanding anything to the contrary in 'this Act" the operation of that section should be confined to the tax payable under the Principal Act and could not be extended to the additional tax payable under the Act has no force.
When the Principal Act was enacted, section 8 could apply only to the liability under the Principal Act, but by reason of section 3(2) of the Act, section 8 has been made applicable to the levy, assessment and collection of additional tax under the Act.
If this argument is accepted many provisions of the Principal Act which are necessary for making the levy under the Act effective would become inapplicable, as for example section 13 relating to the machinery for recovery of tax and penalty.
[381 F H, 382 A] The second proviso to section 3(1) of the Act does not in any way curtail the effect of section 3(2) of the Act which forms an integral part of the charming section.
Consequently any exemption granted under sections 6 and 7 of the Principal Act would also be applicable in the case of levy of additional tax under the Act.
[382 C D]


judgement:
: Criminal Appeal No. 75 of 1983.
Appeal by Special leave from the Judgment and order dated the 20th December, 1976 of.
the Madras High Court in Criminal Appeal No. 182 of 1975 and Referred Trial No. 11 of 1975.
R.K Garg and R. Satish for the Appellant/Petitioner.
A.V. Rangam for the Respondent.
The order of the Court was delivered by 350 CHINNAPPA REDDY, J. A prisoner condemned to death over eight years ago claims that it is not lawful to hang him now.
Let us put the worst against him first.
He was the principal accused in the case and, so to say, the arch villian of a villainous piece.
He was the brain behind a cruel conspiracy to impersonate Customs officers ' pretend to question unsuspecting visitors to the city of Madras, abduct them on the pretext of interrogating them, administer sleeping pills to the unsuspecting victims steal their cash and jewels and finally murder them.
The plan was ingeniously fiendish and the appellant was the architect.
There is no question that the learned Sessions Judge very rightly sentenced him to death But that was in January 1975.
Since then he has been kept in solitary confinement, quite contrary to our ruling in Sunil Batra vs Delhi Administra tion(1).
Before that he was a 'prisoner under remand ' for two years.
So, the prisoner claims that to take away his life after keeping him in jail for ten years, eight of which in illegal solitary confinement, is a gross violation o the Fundamental Right guaranteed by article 21 af the Constitution.
Let us examine his claim.
First let us get rid of the cobwebs of prejudice Sure, the murders were wicked and diabolic.
The appellant and his friends showed no mercy to their victims.
Why should any mercy be shown to them? But, gently, we must remind ourselves it is not Shylock 's pound of flesh that are seek, nor a chilling of the human spirit.
It is justice to the killer too and not justice untempered by mercy that we dispense.
Of course, we cannot refuse to pass the sentence of death where the circumstances cry for it.
But, the question is whether in a case where after the sentence of death is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, is it not open to a court of appeal or a court exercising writ jurisdiction, in an appropriate proceeding, to take note of the circumstance when it is brought to its notice and give relief where necessary? Before adverting to the constitutional implications of prolong ed delay in the execution of a sentence of death, let us refer to the judicial attitude towards such delay in India and elsewhere.
In Piaradusadh vs Emperor(2), the Federal Court of India took into consideration the circumstance that the appellant had been 351 awaiting the execution of the death sentence for over a year to alter the sentence to one of transportation for life.
In Ediga Annamma vs State af Andhra Pradesh(l), Krishna Iyer and Sarkaria, JJ observed that "the 'brooding horror of hanging ' which has been haunting the prisoner in her condemned cell for over two years" had an "ameliorative impact" and was "a factor of humane significance in the sentencing context".
In State of U.P. vs Lalla Singh(2) Gupta and Kailasam, JJ, were dealing with a case of gruesome murder of three persons, the head of one of whom was severed.
The learned judges, while of the view that the Sessions Judge was perfectly in order in imposing the sentence of death, thought that as the offences had been committed More than six years ago, the ends of justice did not require the sentence of death to be confirmed.
In Bhagwan Baux Singh vs State of U.P.(3), the sentence of death was commuted to imprisonment for life by Murtaza Fazal Ali and Kailasam, JJ, having particular regard to the fact that the sentence of death had been imposed more than two and a half years ago.
In Sadhu Singh vs State of U.P.(4), Sarkaria, Sen, JJ, and one of us (Chinnappa Reddy, JJ took into account the circumstance that the appellant was under spectre of the sentence of death for over three years and seven months to alter the sentence of death to one of imprisonment for life.
In State of U.P. vs Sahai(5), Murtaza Fazal Ali, Baharul Islam and Varadarajan, JJ, while holding that the murders were 'extremely gruesome, brutal and dastardly ', nonetheless declined to pass the sentence of death on the ground that more than eight years had elapsed since the occurrence.
In Furman vs State of Georgia(6), Justice Brennan observed, "The prospect of pending execution exacts a frightful toll during the 352 inevitable long wait between the imposition of sentence and the actual infliction of death".
In Noel Riley and Ors.
vs The Attorney General and Another(1) the majority of the Lords of the Judicial Committee of the Privy Council expressed no opinion on the question whether the delayed execution of a sentence of death by hanging could be described as "inhuman or degrading punishment".
But Lord Scarman and Lord Brightman who gave the minority opinion, after referring.
to the British practice and Furman vs State of Georgia, People vs Chessman, People vs Anderson, Ediga Anamma vs State of Andhra Pradesh, Rajendra Prasad vs State of U.P. and Tyrer vs United Kingdom, said: "It is no exaggeration, therefore, to say that the jurisprudence of the civilised world, much of which is derived from common law principles and the prohibition against cruel and unusual punishment in the English Bill of Rights, has recognised and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading.
As the Supreme Court of California commented in Anderson 's case (supra), it is cruel and has dehumanising effects.
Sentence of death is one thing: sentence of death followed by lengthy imprisonment prior to execution is another.
"It is of course true that a period of anguish and suffering is an inevitable consequence of sentence of death.
But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not.
And it is no answer to say that the man will struggle to stay alive.
In truth, it is this ineradicable human desire which makes prolongation inhuman and degrading.
The anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity and health of the individual are vividly described in the evidence of the effect of the delay in the circumstances of these five cases.
We need not rehearse the facts, which are not in dispute.
We do not doubt that the appellants have proved that they have been subjected to a cruel and dehumanising experience . . . . . . . . 353 "Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry out the sentence of death an inhuman and degrading punishment.
It is, of course, for the applicant for constitutional protection to show that the delay was inordinate, arose from no act of his, and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading.
Such a case has been established, in our view, by these appellants.
" While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further.
We think that the cause of the delay is immaterial when the sentence is death.
Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay.
What are the constitutional implications of the dehumanising factor of prolonged delay in the execution of a sentence of death? Let us turn at once to article 21 of the Constitution, for, it is to that article that we must first look for protection whenever life or liberty is threatened.
article 21 says: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The dimensions of article 21 which at one time appeared to be constricted by A.R. Gopalan vs State of Madras(1) have been truly expanded by Maneka Gandhi vs Union of India(2) and Sunil Batra etc.
vs Delhi Administration.(3) In Maneka Gandhi vs Union of India(2), it was held that the various articles of the Constitution in Chapter III (Fundamental Rights) were not several, isolated walled fortresses, each not reacting on the other, but, on the other hand, were parts of a great scheme to secure certain basic rights to the citizens of the country, each article designed to expand but never to curtail the content of the right secured by the other article.
No article was a complete code in 354 itself and several of the Fundamental Rights guaranteed by Chapter Ill of the Constitution overlapped each other.
So, a law satisfying the requirements of article 21 would still have to meet the challenge of article 14 and article 19 of the Constitution.
In regard to article 21 itself, it was held that the procedure contemplated by the article had to be fair, just and reasonable, and not some semblance of procedure, fanciful, oppressive or arbitrary.
Chandrachud.
J, (as he then was) said: "But the mere prescription of some kind of procedure cannot ever meet the mandate of article 21.
The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.
" Chandrachud, J. expressed his total agreement with Bhagawati, J 's following observations: "The law must, therefore, now be taken to be well settled that article 21 does not exclude article 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty ' and there is consequently no infringement of the fundamental right conferred by article 21, such law, in so far as it abridges or takes away any fundamental right under article 19 would have to meet the challenge of that article. ' Bhagwati, J. further observed: "But apart altogether from these observations in A.K Gopalan 's case, which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by article 21, having regard to the impact of article 14 on article 21.
" Again he said: "The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades article 14 like a brooding omnipresence and the procedure contemplated by article 21 must answer the test of reasonableness in order to be in conformity with article 14.
It must be "right and just and fair" and pot arbitrary, fanciful or oppressive; otherwise, it would be 355 no procedure at all and the requirement of article 21 would A not be satisfied.
" In Sunil Batra vs Delhi Administration(1), Krishna Iyer, J. while dealing with the question whether solitary confinement could be indicted on a person awaiting death sentence, observed: B "True our Constitution has no 'due process ' clause or the VIII Amendment; but, in this branch of law, after Cooper and Maneka Gandhi, the consequence is the same.
For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter productive, is unarguably unreasonable and arbitrary and is shot down by " articles 14 and 19 and if inflicted with procedural unfairness, falls foul of article 21.
Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner 's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison D authority.
Is a person under death sentence or under trial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (article 19) become chimerical constitutional claptrap.
" In the same case, Desai, J. said: "The word "law" in the expression "procedure established by law" in article 21 has been interpreted to mean in Maneka Gandhi 's case (supra) that the law must be right, just and fair, and not arbitrary, fanciful or oppressive.
otherwise it would be no procedure at all and the requirement of article 21 would not be satisfied.
If it is arbitrary it would be violative of article 14.
" In Bachun Singh vs State of Punjab(2) Sarkaria, J. summarised the effect of Maneka Gandhi in these words: 356 "In Maneka Gandhi 's case, which was a decision by a Bench of seven learned Judges, it was held by Bhagwati, J. his concurring judgment, that the expression 'personal liberty ' in article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights under article 19.
It was further observed that articles 14, 19 and 21 are not to be interpreted in water tight compartments, and consequently, a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of article 21 has to stand the test of one or more of the fundamental rights conferred under article 19 which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with reference to article 14.
The principle of reasonableness pervades all the three articles, with the result, that the procedure contemplated by article 21 must be 'right and just and fair ' and not 'arbitrary, fanciful or oppressive ' otherwise it should be no procedure at all and the requirement of article 21 would not be satisfied".
The learned judge then referred to article 21 and said, "If this article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi, it will read as follows: "No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law".
In the converse positive form, the expanded Article will read as below: "A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law". "Thus expanded and read for interpretative purposes, article 21 clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law".
357 The question whether a prisoner under a lawful sentence of A '.
death or imprisonment could claim Fundamental Rights was considered in Bhuvan Mohan Patnaik vs State of A.P.(l).
Chandrachud, J. (as he then was) declared: "Convicts are not, by mere reason of the conviction.
denuded of all the Fundamental Rights which they other wise possess.
A compulsion under the authority of law, following upon a conviction, to live in a prison house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession.
A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence.
But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment.
Likewise, even convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law".
The declaration of Chadrachud, I. in Bhuvan Mohan Patniak 's case was quoted with approval and accepted by the Constitution Bench in Sunil Batra vs Administration (supra).
We may also refer here to State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr '(2) where a Constitution Bench repelled the argument that the Bombay Conditions of Detention order 1951 conferred privileges but not rights on the detenu with the p observation: "If this argument were to be accepted, it would mean that the detenu could be starved to death if there was no condition providing for giving food to the detenu".
The Court has also recognised that the right to life and liberty guaranteed by article 21 of the Constitution includes the right to a speedy trial.
The right to a speedy trial may not be an expressly guaranteed constitutional right in India, but it is implicit in the 358 right to a fair trial which has been held to be part of the right to life and liberty guaranteed by Art.21 of the Constitution.
After referring to situations where an accused person may be seriously jeopardised in the conduct of his defence with the passage of time, it was observed by one of us in State of Maharashtra vs Champalal(l): "Such situations, in appropriate cases, we may readily infer an infringement of the right to life and liberty guaranteed by article 21 of the Constitution.
Denial of a speedy trial may with or without proof of something more lead to an inevitable inference of prejudice and denial of justice.
It is prejudice to a man to be detained without trial.
It is prejudice to a man to be denied a fair trial.
A fair trial implies a speedy trial." Earlier in Hussainara Khatoon (I) vs Home Secretary(2), it was observed by Bhagwati.
J.: "If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under article 21 and he would be entitled to enforce such fundamental right and secure his release.
Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just ' unless that procedure ensures a speedy trial for determination of the guilt of such person.
No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just ' and it would fall foul of article 21.
There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in article 21.
" In Hussainara Khatoon (IV) vs Home Secretary(3), the principle was re affirmed and Bhagwati, J. added: "Speedy trial is, as held by us in our earlier judgment dated February 26, 1979, an essential ingredient of 'reason 359 able, fair and just ' procedure guaranteed by article 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial to the accused." In the same case, it was further observed that the right to free legal services was implicit in article 21 as no procedure could be said to be reasonable, fair and just which did not provide for legal service to those who could not secure them themselves.
That free legal services to the poor and the needy was an essential element of any reasonable, fair and just procedure had already been decided in M:H. Hoskot vs State of Maharashtra(l).
So, what do we have now? articles 14, 19 and 21 are not mutually exclusive.
They sustain, strengthen and nourish each other.
They are available to prisoners as well as free men.
Prison walls do not keep out Fundamental Rights.
A person under sentence of death may also claim Fundamental Rights.
The fiat of article 21, as explained, is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable.
Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them.
It implies a right to a speedy trial.
It implies humane conditions of detection, preventive or punitive. 'Procedure established by law ' does not end with the pronouncement of sentence; it includes tho carrying out of sentence.
That is as far as we have gone so far.
It seems to us but a short step, but a step in the right direction, to hold that prolonged detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death.
In the United States of America where the right to a speedy trial is a constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence (vide Strunk vs United States(2).
Analogy of American Law is not permissible, but interpreting our Constitution sui generis, as we are bound to do, we find no impediment in holding that the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except 360 according to procedure established by law.
The appropriate relief in such a case ii tn vacate the sentence of death.
What may be considered prolonged delay so as to attract the constitutional protection of article 21 against the execution of a sentence of death is a ticklish question.
In Ediga Annamma 's case, two years was considered sufficient to justify interference with the sentence of death.
In Bhagwan Baux 's case, two and a half years and in Sadhu Singh 's case, three and a half years were taken as sufficient to justify altering the sentence of death into one of imprisonment for life.
The Code of Criminal Procedure provides that a sentence of death imposed by a court of Session must be confirmed by the High Court.
The practice, to our knowledge, has always been to give top priority to the hearing of such cases by the High Courts.
So, also in this Court.
There are provisions in the Constitution (articles 72 and 161) which invest the President and the Governor with power to suspend, remit or commute a sentence of death.
Making all reasonable allowance for the time necessary for appeal and considered of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death.
We therefore accept the special leave petition, allow the appeal as also the Writ Petition and quash the sentence of death.
In the place of the sentence of death, we substitute the sentence of imprisonment for life.
H.L.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant was sentenced to death in January, 1975 on a charge of committing wicked and diabolic murders and since then he was in solitary confinement.
Before conviction.
he had been a 'prisoner under remand ' for two years.
The appellant 's contention was that to take away his life after keeping him in jail for ten years, eight of which in illegal solitary confinement, would be violative of article 21.
Allowing the appeal and converting the sentence of death to one of imprisonment for life, ^ HELD: The dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according.
to procedure established by law.
Making all reasonable allowance for the time necessary.
for appeal and consideration of reprieve, a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death.
[359 G H, 360 D E] (i) A convict is entitled to the precious right guaranteed in article 21.
The right to a speedy trill is implicit in the right to a fair trial which has been held to be part of the right to life and liberty guaranteed by this Article.
[357 D, 357 G H, 358 A] Bhuvan Mohan Patnaik vs State of A.P., [1975] 2 S.C.R. 24; Sunil Batra vs Delhi Administration, [1979] 1 S.C.R. 392; State of Maharashtra vs Prabhakar Pandurang Sanpzgiri & Anr., ; ; State of, Maharashtra vs Champalal, A.l.R. ; Hussainara Khatoon (I) vs Home Secretary, ; and Hussainara Khatoon (IV) vs Home Secretary, ; referred to.
349 (ii) Tho Sat of article 21 is that any procedure which deprives a person of his life or liberty must be just, fair and 'reasonable.
It implies humane conditions of detention, preventive or punitive. 'Procedure established by law ' does not end with the pronouncement of sentence; it includes the carrying out of sentence.
Prolonged detention to await the execution of a sentence, of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death [359 D E, 359 G H, 360 A] Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621, Sunil Batra vs Delhi Administration, ; and Bachan Singh vs State of Punjab, A.I.R. referred to.
(iii) Sentence of death is one thing; sentence of death followed by lengthy imprisonment prior to execution is another.
A period of anguish and suffering is an inevitable consequence of sentence of death, but a prolongation of it beyond the time necessary for appeal and consideration of retrieve is not.
And, it is no answer to say that the man will struggle to stay alive.
In truth, it is this ineradicable, human desire which makes prolongation inhuman and degrading with its anguish of alternating hope and despair, the agony of uncertainty and the consequences of such suffering on the mental, emotional and physical integrity and health of the individual.
Where, after the sentence of death is given, the accused is made to undergo inhuman, and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to super the most excruciating agony and anguish, it is open to a court of appeal or a court exercising writ jurisdiction, in an appropriate proceeding, to take note Of the circumstance when it is brought to its notice and give relief where necessary.
[352 E G, E] Noel Riley & Ors.
vs The Attorney General & Anr., [1982] Crl.
Law Review 679; Piaradusadh Y. Emperor, A.I.R. ; Ediga Annamma vs State of Andhra Pradesh, ; ; State of U.P. vs Lalla Singh, A.I.R. ; Bhagwan Baux Singh vs State of U.P., A.I R ; Sadhu Singh vs State of U.P., A.I.R. ; State of U.P. vs Sahai, A.I.R. and Furman vs State of Georgia, ; , referred to.


judgement:
Petition for Special Leave to Appeal (Civil) No. 4679 of 1980,.
From the Judgment and order dated the 24th July, 1979 of the High Court of Madhya Pradesh at Jabalpur in Misc.
Petition No. 119 of 1975.
Gopal Subramaniam and D. P. Mohanty for the Petitioner.
J., Since we are clearly of the view that the special leave petition should be dismissed in 1975 on merits, I would not like to go any further into the details of the facts of the case.
r would, therefore, refrain from expressing any opinion on the observations made by my learned brother Chinnappa Reddy, J. 395 CHINNAPPA REDDY, J.
This special leave petition has to be dismissed.
There is no merit in it.
The respondent was a teacher employed in a municipal school.
The school was taken over by the Government in June 1971.
The respondent was absorbed in Government service by an order dated February 28, 1972.
The order recited that the absorption was subject to 'verification of antecedents ' and medical fitness The services of the respondent were terminated on November S, 1974.
Though the order terminating the services of the respondent did not purport to stigmatise him in any manner, it was not disputed before the High Court and it is no longer disputed before us that the order was founded on a report made by the Superintendent of Police, Raigarh on October 31, 1974, to the effect that the respondent was not a fit person to be entertained in Government service, as he had taken part in 'RSS and Jan Sangh activities '.
The High Court held that the order of termination of service was of a punitive character and quashed it on the ground that the provisions of article 311 of the Constitution had not been complied with.
The State of Madhya Pradesh has sought leave to appeal to this court under article 136 of the Constitution.
India is not a police state.
India Is a democratic republic.
More than 30 years ago, on January 26, 1950, the people of India resolved to constitute India into a democratic republic and to secure to all its citizens "Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity", and to promote "Fraternity, assuring the dignity of the individual".
This determination of the people, let us hope, is not a forgotten chapter of history.
The determination has been written into the articles of the Constitution in the shape of Fundamental Rights and they are what makes India a democratic republic and what marks India from authoritarian or police States.
The right to freedom of speech and expression, the right to form associations and unions, the right to assemble peaceably and without arms.
the right to equality before the law and the equal protection of the right laws, the right to equality of opportunity in matters relating to employment or appointment to any office under the State are declared Fundamental Rights.
Yet the Government of Madhya Pradesh seeks to deny employment to the respondent on the ground that the report of a Police officer stated that he once belonged to some political organisation.
It is important to note that the action sought to be taken against the respondent is not any disciplinary action on the ground of his present involvement in 396 political activity after entering the service of the Government, contrary to some Service Conduct Rule.
It is further to be noted that it is not alleged that the respondent ever participated in any illegal, vicious or subversive activity.
There is no hint that the respondent was or is a perpetrator of violent deeds or that he exhorted anyone to commit violent deeds.
There is no reference to any addition to violence or vice or any incident involving violence, vice or other crime.
All that is said is that before he was absorbed in Government service, he had taken part in some 'RSS or Jan Sangh activities. ' What those activities were has never been disclosed.
Neither the RSS nor tho Jan Sangh is alleged to be engaged in any , subversive or other illegal activity; nor are the organisations banned.
Most people, including intellectuals, may not agree with the program me and philosophy of the Jan Sangh and the RSS or, for that matter of many other political parties and organisations of an altogether different hue.
But that is irrelevant.
Everyone is entitled to his thoughts and views.
There are no barriers.
Our Constitution guarantees that.
In fact members of these organisations continue to be members of Parliament and State Legislatures.
They are heard, often with respect inside and outside the Parliament.
What then was the sin that the respondent committed in participating in some political activity before his absorption into Government service.
What was wrong in his being a member of an organisation which is not even alleged to be devoted to subversive or illegal activities.
The whole idea of seeking a Police report on the political faith and the past political activity of a candidate for public employment appears to our mind to cut at the very root of the Fundamental Rights of equality of opportunity in the matter of employment, freedom of expression and freedom of association.
It is a different matter altogether if a police report is sought on the question of the involvement of the candidate in any criminal or subversive activity in order to find out his suitability for public employment.
But why seek a police report on the political faith of a candidate and act upon it.
Politics is no crime.
Does it mean that only True Believers in the political faith of the party in power for the time being are entitled to public employment ? Would it not lead to devastating results, if such a policy is pursued by each of the Governments of the constituent States of India where different political parties may happen to wield power, for the time being ? Is public employment reserved for "the cringing and the craven" in the words of Mr. Justice Black of the United States Supreme Court ? Is it not destructive of the dignity of the 397 individual mentioned in the preamble of the Constitution ? Is it to be put against a youngman that before the cold climate of age and office freezes him into immobility, he takes part in some political activity in a mild manner.
Most students and most youngmen are exhorted by national leaders to take part in political activities and if they do get involved in some form of agitation or the other, is it to be to their ever lasting discredit i Sometimes they get involved because they feel strongly and badly about injustice, because they are possessed of integrity and because they are fired by idealism.
They get involved because they are pushed into the forefront by elderly leaders who lead and occasionally mislead them.
Should all these youngmen be debarred from public employment ? Is Government service such a heaven that only angels should seek entry into it ? a We.
do not have the slightest doubt that the whole business of seeking police reports, about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic rights guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set forth in the preamble of the Constitution.
We think it offends the Fundamental Rights guaranteed by articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual 's service.
To hold otherwise would be to introduce 'McCarthysim ' into India. 'McCarthyism ' is obnoxious to the whole philosophy of our constitution.
We do not want it.
In the fifties the practice of baiting and crucifying teachers, public servants and a host of others in the United States, as Communists came to be known as 'McCarthyism.
Its baleful effects were described by late President Eisenhower, himself an anticommunist as follows : 'McCarthyism took its toll on many individuals and on the Nation.
No one was safe from charges recklessly made from inside the walls of congressional immunity.
Teachers, Government employees, and even ministers became vulnerable.
Innocent people accused of Communist associations or party membership have not to this day been able to clear their names fully.
For a few, of course, the cost was little where the accused was a figure who stood high in public trust and respect, personal damage, if any could be ignored or laughed away.
But where, without 398 proof cf guilt, or because of some accidental or early in life association with suspected persons, a man or woman had lost a job or the confidence and trust of superiors and associates, the cost was often tragic, both emotionally and occupationally" .
The late President also said, "They. fear other people 's ideas every new idea.
They. talk about censoring tho sources and the communication of ideas. without exhaustive debate even heated debate of ideas and programmes, free Government would weaken and wither.
But if we allow ourselves to be persuaded that every individual, or party, that takes issue with our own convictions is necessarily wicked or treasonous then we are approaching the end of freedom 's road. " In Wieman V. Updegraff (1), Black J. said, in one of the notorious loyalty oath cases and, it is worth quoting in full. "History indicates that individual liberty is intermittently subjected to extraordinary perils.
Even Countries dedicated to government by the people are not free from such cyclical dangers.
The first years of our Republic marked such a period.
Enforcement of the Alien and Sedition Laws by zealous patriots who feared ideas made it highly dangerous for people to think, speak, or write critically about government, its agents, or its policies, either foreign or domestic our Constitutional liberties survived the ordeal of this regrettable period because there were influential men and powerful organized groups bold enough to champion the undiluted right of individuals to publish and argue for their beliefs however unorthodox or loathsome.
Today however, few individuals and organizations of power and influence argue that unpopular advocacy has this same wholly unqualified immunity from governmental interference.
For this and other reasons the present period of fear sees more ominously dangerous to speech and press than was that of the Alien and Sedition Laws, Suppressive laws and practices are the fashion.
The Oklahoma 399 oath statute is but one manifestation of a national network A of laws aimed at coercing and controlling the minds of men.
Test oaths are notorious tools of tyranny.
When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people.
Test oaths are made still more dangerous when combined with bills of attainder which like this Oklahoma statute impose pains and penalties for past lawful associations and utterances.
"Governments need and have ample power to punish treasonable acts But it does not follow that they must have a further power to punish thought and speech as distinguished from acts.
Our own free society should never forget that laws which stigmatize and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended.
We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven.
And I cannot too often repeat my belief that the right to speak on matters of public concern must be wholly lost.
"It seems self evident that all speech criticizing government rulers and challenging current beliefs may be dangerous to the status quo.
With full knowledge of this danger the Framers rested our First Amendment on the premise that the slightest suppression of thought, speech, press, or public assembly is still more dangerous.
This means that individuals are guaranteed an undiluted and unequivocal P right to express themselves on questions of current public interest.
It means that Americans discuss such questions as of right and not on sufferance of legislatures, courts or any other governmental agencies.
It means that courts are without power to appraise and penalize utterances upon their notion that these utterances are G dangerous.
In my view this uncompromising interpretation of the Bill of Rights is the one that must prevail if its freedoms are to be saved.
Tyrannical totalitarian governments cannot safely allow their people to speak with complete 400 freedom.
I believe with the Framers that our free Government can".
In another loyalty oath case, Garner vs Board of Public Works, (l) Douglas, J had this to say: "Here the past conduct for which punishment is exacted is single advocacy within the past five years of the overthrow of the Government by force and violence.
In the other cases the acts for which Cummings and Garland stood condemned covered a wider range and involved some conduct which might be vague and uncertain.
But those differences, seized on here in hostility to the constitutional provisions, are wholly irrelevant.
Deprivation of a man 's means of livelihood by reason of past conduct, not subject to this penalty when committed, is punishment whether he is a professional man, a day labourer who works for private industry, or a Government employee.
The deprivation is nonetheless unconstitutional whether it be for one single past act or a series of past acts . . "Petitioners were disqualified from office not for what they are today, not because of any program they currently espouse (cf.
Grende vs Board of Supervisors ; not because of standards related to fitness for the office, cf: Dcnt vs West Virginia ; ; Hawker vs New York, ; , but for what they once advocated. . .
In the same case, Frankfurter, J. Observed: "The needs of security do not require such curbs on what may well be innocuous feelings and associations.
Such curbs are indeed self defeating.
They are not merely unjustifiable restraints on individuals.
They are not merely productive of an atmosphere of repression uncongenial to the spiritual vitality of a democratic society.
The inhibitions which they engender are hostile to the best conditions for securing a high minded and high spirited public service.
" In Lerner vs Casey, (a) Douglas, J. said: 401 "We deal here only with a matter of belief.
We have no evidence in either case that the employee in question ever committed a crime, ever moved in treasonable opposition against this country.
The only mark against them if it can be called such is a refusal to answer questions concerning Communist Party membership.
This is said to give rise to doubts concerning the competence of the teacher in the Beilan case and doubts as to the trustworthiness and reliability of the subway conductor in the Lerner case. " "There are areas where government may not probe But government has no business penalizing a citizen merely for his beliefs or associations.
It is government action that we have here.
It is government action that the Fourteenth and First Amendments protect against . .
Many join association, societies, and fraternities with less than full endorsement of all their aims.
" In Speiser vs Randall, (1) Black, J said: "This case offers just another example of a wide scale effort by Government in this country to impose penalities and disabilities on everyone who is or is suspected of being a 'Communist ' or who is not ready at all times and all places to swear his loyalty to State and Nation.
I am convinced that this whole of business of penalizing people because of their views and expressions concerning Government is hopelessly repugnant to the principles of Freedom upon which this Nation was founded .
Loyalty oaths, as well as other contemporary 'security measures, ' tend to stifle all forms of unorthodox or unpopular thinking or expression the kind of thought and expression which has played such a vital and beneficial role in the History of this Nation.
The result is a stultifying conformity which in the end may well turn out to be more destructive to our free society than foreign agents could ever hope to be." In the same case, Douglas, J., said: 402 "Advocacy which is in no way brigaded with action should always be protected by the First Amendment.
That protection should extend even to the ideas we despise.
As Mr. Justice Holmes, wrote in dissent in Gitlow.
vs New York.
(l) 'If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way '.
It is time for government state or federal to become concerned with the citizen 's advocacy when his ideas and beliefs move into the realm of action".
We may end our excursion to the United States of America with a reference to the words of wisdom uttered by Thomas Jefferson more than two centuries ago: ". the opinions of men are not the object of civil government, nor under its jurisdiction;. it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.
" We are not for a moment suggesting that even after entry into Government service, a person may engage himself in political activities.
All that we say is that he cannot be turned back at the very threshold on the ground of his past political activities.
Once he becomes a Government servant, he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution.
Let us once more remained ourselves of what Gurudev Rabindranath Tagore said: "Where the mind is without fear and the head is held high: where knowledge is free,. 403 Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit: Where the mind is led forward by thee into ever widening thought and action let my country awake".
The application is dismissed.
P.B.R Petition dismissed.

summary/full:
Consequent upon the taking over by the Government of the municipal school in which the respondent worked as a teacher, he was absorbed in Government service.
The order stated that his absorption in Government service was subject to verification of his antecedents.
Sometime later, on the basis of the report of the Superintendent of Police that before being absorbed in Government service the respondent had taken part in RSS and Jan Sangh activities his services were terminated on the ground that he was not a fit person to be entertained in Government service.
On the view that the order of termination of his service was of a punitive character, passed without complying with the provisions of article 311 of the Constitution, the High Court quashed that order.
Dismissing the special leave petition under article 136 of the Constitution, ^ HELD: per section Murtaza Fazal Ali, J.
The special leave petition should be dismissed in limine.
[394 H] per o. Chinnappa Reddy, J.
The respondent cannot be turned back at the very threshold on the ground of his past political activities.
Once he becomes a Government servant, a he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution.
[402 E P] The determination of the people of this country to constitute India into a democratic republic and to secure to all its citizens "liberty of thought, expression.
belief, faith and worship; Equality of status and opportunity" has been written into the articles of the Constitution in the shape of fundamental 394 rights and they are what makes India a democratic republic and what marks India from authoritarian or police states.
The right to form associations and unions, among other rights, is declared as a fundamental right; yet the State Government sought to deny employment to him on the ground that the report of a police officer stated that he once belonged to some political organisation.
[395 F H] The action sought to be taken against the respondent was not any disciplinary action on the ground of his present involvement in political activities contrary to some service conduct rule nor was there any allegation that he ever participated in any illegal or subversive activity or that he was a perpetrator of violent deeds.
All that was said was that before he was absorbed in Government service he had taken part of RSS and Jan Sangh activities.
What those activities were had never been disclosed.
Neither the RSS nor the Jan Sangh was alleged to be engaged in any subversive or other illegal activities, nor were they banned organisations.
Most people may not agree with the programme and philosophy of the Jan Sangh or RSS but that is irrelevent.
Everyone is entitled to his thought and views.
Members of these organisations continue to be members of Parliament and State legislatures.
They are heard often with respect both inside and outside the Parliament.
[395 H; 396 A D] The whole idea of seeking a police report on the political faith and the past political activity of a candidate for public employment appears to cut at the very root of the fundamental rights of equality of opportunity in the matter of employment and freedom of association.
It offends the fundamental rights guaranteed by articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual 's service.
[397 D E] Wieman vs Updegraff, ; & Speisar vs Randall, ; , referred to.