judgement:
Criminal Misc.
Petition 1649 of 1978.
Application for bail.
section section Khanduja for the Appellant.
I. N. Shroff and section K. Gambhir for the Respondent.
V. M. Tarkunde, K. T. Harinder Nath, R. K. Jain and H.K. Puri for the Intervener The order of the Court was delivered by KRISHNA IYER, J. 'The law.
in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread", lampooned Anatole France.
The reality of this caricature of equal justice under the law, whereby the poor are priced out of their liberty in the justice market, is the grievance of the petitioner.
His criminal appeal pends in this Court and he has obtained an order for bail in his favour "to the satisfaction of the Chief Judicial Magistrate".
The direction of this Court did not spell out the details of the bail, and so, the magistrate ordered that a surety hl a sum of Rs. 10,000/ be produced which, in actual impact, was a double denial of the bail benefit.
For one thing the miserable mason.
the petitioner before us, could not afford to procure that huge sum or manage a surety of sufficient prosperity.
Affluents do not befriend indigents.
For another, the magistrate made an odd order refusing to accept the suretyship of the petitioner 's brother because he and his assets were in another district.
If mason and millionaire were treated alike, egregious inegality is an inevitability.
Likewise, geographic allergy at the judicial level makes mockery of equal protection of the laws within the territory of India.
India is one and not a conglomeration of districts, untouchably apart.
When this Court 's order for release was thus frustrated by magisterial intransigence the prisoner moved this Court again to modify the original order "to the extent that petitioner be released 338 on furnishing surety to the tune of Rs. 2,000/ or on executing a personal bond or pass any other order or direction as this Hon 'ble Court may deem fit and proper".
From this factual matrix three legal issues arise ( 1 ) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without sureties, a person undergoing incarceration for a non bailable offence either as undertrial or as convict who has appealed or sought special leave ? (2) If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and (3) Is it within the power of The court to reject a surety because he or his estate is situate in a different district or State ? This formulation turns the focus on an aspect of liberty bearing on bail jurisprudence.
The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are presona grata, may well be the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners or our country with its vast diversity.
In fact the grant of bail can be stultified or made impossibly inconvenient and expensive if the court is powerless to dispense with surety or to receive an Indian bailor across the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive.
The problem is plainly one of the human rights, especially freedom vis a vis the lowly.
This poignant import of the problem persuaded the Chamber Judge to invite the Supreme Court Bar Association and the Citizens for Democracy to assist the Court in decoding the Code and its provisions regarding bail.
The Kerala State Bar Federation was permitted to intervene and counsel for the parties also made submissions.
We record our appreciation of the amici curiae for their services and proceed to discuss the triple issues formulated above.
There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of that matter do not have to be examined now.
It is a sombre reflection that many little Indians are forced into long cellular servitude for little offences because trials never conclude and bailors are beyond their meagre means.
The new awareness about human rights imparts to what might appear to be a small concern relating to small men a deeper meaning.
That is why we have decided to examine the question from a wider perspective bearing in mind prisoner 's rights in an * Justice V. R. Krishna Iyer.
339 international setting and informing ourselves of the historical origins and contemporary trends in this branch of law.
Social Justice is the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of Social Justice.
There is no definition of bail in the Code although offences are classified as bailable and non bailable.
The actual Sections which deal with bail, as we will presently show, are of blurred semantics.
We have to interdict judicial arbitrariness deprivatory of liberty and ensure 'fair procedure ' which has a creative connotation after Maneka Gandhi.
(1) Before we turn to the provisions of the Code and dwell on the text of the Sections we may as well remember what Justice Frankfurter said: "there is no surer way to misread a document than to read it literally.
"2 Speaking generally, we agree with the annotation of the expression 'bail ' given in the American Jurisprudence (2nd Edn.
Vol. 8, article 2, p. 783): "The term 'bail bond ' and 'recognizance ' are used inter changeably in many bail statutes, and quite generally without distinction by the courts, and are given a practically identical effect." According to the American Jurisprudence, article 6, p. 785, there is power in the court to release the defendant without bail or on his own recognizance.
Likewise, the definition of bail as given in Webster 's Third New International Dictionary: "The process by which a person is released from custody.
" The concept of bail has a long history briefly set out in the publication on 'Programme in Criminal Justice Reform ': "The concept of bail has a long history and deep roots in English and American law.
In medieval England, the custom grew out of the need to free untried prisoners from disease ridden jails while they were waiting for the delayed trials conducted by travelling justices.
Prisoners were bailed, or 'delivered, to reputable third parties of (l) [1978] 2 S.C.R. 621 [1978] 1 S C.C. 248.
(2) Massachusetts B. and Insurance Co. vs U S, ; 138.
340 their own choosing who accepted responsibility for assuring their appearance at trial.
If the accused did not appeal, his bailor would stand trial in his place.
Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial.
From this grew the modern practice of posting a money bond through a commercial bondsman who receives a cash premium for his service, and usually demands some col lateral as well.
In the event of non appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may produce the accused h court.
"(1) It sounds like a culture of bonded labour, and yet are we to cling to it ! of course, in the United States, since then, the bondsman emerged as a commercial adjunct to the processes of criminal justice, which, in turn, bred abuses and led to reform movements like the Manhattan Bail Project.
This research project spurred the National Bail Conference, held in 1964, which in its crucial chain reaction provided the major impetus to a reform of bail law across the United States.
The seminal statutory outcome of this trend was the enactment of the Bail Reform Act of 1966 signed into law by President Lyndon B. Johnson.
It is noteworthy that Chief Justice Earl Warren, Attorney General Robert Kennedy and other legal luminaries shared the view that bail reform was necessary.
Indeed, this legislative scenario has a lesson for India where a much later Criminal Procedure Code 1973 has largely left untouched ancient provisions on this subject, incongruous with the Preamble to the Constitution.
An aside.
Hopefully, one wishes that socio legal research projects in India were started to examine our current bail system.
Are researchers and jurists speechless on such issues because pundits regard these small men 's causes not worthwhile ? Is the art of academic monitoring of legislative performance irrelevant for India ? The American Act of 1966 has stipulated, inter alia, that release should be granted in non capital cases where there is reasonable assurance that the individual will reappear when required; that the Courts should make use of a variety of release options depending on the circumstances; that information should be developed about the individual on which intelligent selection, of alternatives should be based.
(1) Vera Institute of Justice Ten year Error 1961 71 r. 20.
341 The Manhattan Bail Project, conducted by the Vera Foundation and the Institute of Judicial Administration at New York University School of Law, found that about sixty five percent of all felony defendants interviewed could be recommended for release without bail.
Of 2.195 defendants released in this way less than one percent failed to appear when required.
In short, risk of financial loss is all insubstantial deterrent to flight for a large number of defendants whose ties with the community are sufficient to bring them to court.
The consequences of pre trial detention are grave.
Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants.
The jailed defendant loses his job is he has one and is prevented from contributing to the preparation of his defence.
Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.
It is interesting that American criminological thinking and research had legislative response and the Bail Reforms Act, 1966 came into being.
The then President, Lyndon B. Johnson made certain observations at the signing ceremony: "Today, we join to recognize a major development in our system of criminal justice: the reform of the bail system.
This system has endued archaic, unjust and virtually unexamined since the Judiciary Act of 1789.
The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.
How is that purpose met under the present system ? The defendant With means can afford to pay bail.
He can afford to buy his freedom.
But the poorer defendant cannot pay the price He languishes in jail weeks, months and perhaps even years before trial.
He does not stay in jail because he is guilty.
He does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any More likely to flee before trial.
He stays in jail for one reason only because he is poor. " (emphasis added) 342 Coming to studies made in India by knowledgeable Committees we find the same connotation of bail as including release on one 's own bond being treated as implicit in the provisions of the Code of Criminal Procedure.
The Gujarat Committee from which we quote extensively, dealt with this matter in depth: "The bail system, as we see it administered in the criminal courts to day, is extremely unsatisfactory and needs drastic change.
In the first place it is virtually in possible to translate risk of non appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity.
There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one.
The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases.
Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail.
This discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a large majority of those who are brought before the Courts in criminal cases are so poor that they would and it difficult to furnish bail even in a small amount." (emphasis added) The vice of the system is brought out in the Report: "The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing bail or suffer pre trial detention.
Both these consequences are fraught with great hardship to the poor.
In one case the poor accused is fleeced of his moneys by touts and professional sureties and sometimes has even to incur debts to make payment to them for securing his release; in the other he is deprived of his liberty without trial and conviction and this leads to grave consequences, namely: (1) though presumed innocent he is subjected to 343 the psychological and physical deprivations of jail life; (2) he loses his job, if he has one, and is deprived of an opportunity to work to support himself and his family with the result that burden of his detention falls heavily on the innocent members of the family, (3) he is prevented from contribution to the preparation of his defence; and (4) the public exchequer has to bear the cost of maintaining him in the jail.(1) The Encyclopaedia Britannica brings out the same point even in more affluent societies: "bail, procedure by which a judge or magistrate sets at liberty one who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner 's later appearance in court for further proceedings .
Failure to consider financial ability has generated much controversy in recent years, for bail requirements may discriminate against poor people and certain minority groups who are thus deprived of an equal opportunity to secure their free dom pending trial.
Some courts now give special consideration to indigent accused persons who, because of their community standing and past history, are considered likely to appear in court.
"( ') "We should suggest that the Magistrate must always bear in mind that monetary bail is not a necessary element of the Criminal process and even if risk of monetary loss is a deterrent against fleeing from justice, it is not the only deterrent and there are other factors which are sufficient deterrents against flight.
The Magistrate must abandon the antiquated concept under which pre trial release could be ordered only against monetary bail.
That concept is out dated and experience has shown that it has done more harm than good.
The new insight into the subject of pre trial release which has now been developed in socially advanced countries and particularly the United State should now inform the decisions of the Magistrates in regard to pre trial release.
Every other feasible method of (1) Report of the Legal Aid Committee appointee.
by the Govt.
Of Gujarat 1971, and headed by the then Chief Justice of the State, Mr. Justice P.N. Bhagwati p 185.
(2) Encyclopaedia.
Britannica, Vol.
I, P. 736 (15th Edn) Micro edn.
344 pre trial release should be exhausted before resorting lo monetary bail.
The practice which is now being followed in the United States is that the accused should ordinarily be released on order to appear or on his own recognizance unless it is shown that there is substantial risk it is appearance or there are circumstances justifying imposition of conditions on release .
If a Magistrate is Satisfied after making an enquiry into the condition and background of the accused that the accused has his roots in the community and is nor likely to abscond, he can safely release the accused on order to appear or on his own recognizance . "(1) (emphasis added) A latter Committee with Judges, lawyers, members of Parliament and other legal experts.
came to the same conclusion and proceeded on the assumption that release on bail included release on the accused 's own bond: " .
We think that a liberal policy of conditional re lease without monetary sureties or financial security and release on one 's own recognizance with punishment provided for violation will go a long way to reform the bail system and help the weaker and poorer sections of the community to get equal justice under law.
Conditional release may take the form of entrusting the accused to the care his relatives or releasing him on supervision.
The court or the authority granting bail may have to use the discretion judiciously.
When the accused is too poor to find sureties, there will be no point in insisting on his furnishing bail with sureties, as it will only compel him to be in custody with the consequent handicaps in making his defence.
"(2) Thus, the legal literature, Indian and Anglo American, on bail jurisprudence lends countenance to the contention that bait.
loosely used, is comprehensive enough to cover release on ones own bond with or without sureties.
We have explained later that the power of the Supreme Court to enlarge a person during the pendency of a Special Leave Petition or of an appeal is very wide, as order 21 Rule 27 of the Supreme Court Rules discloses.
In that sense, a consideration of the question (1) Report of the Legal Aid Committee appointed by the Govt.
Of Gujarat (2) Report of the Expert Committee on Legal Aid Processual Justice to the People, May 1973.
345 as to whether the High Court or the subordinate courts have powers to enlarge a person on his own bond without sureties may not strictly arise.
Even so, the guidelines which prevail with the Supreme court when granting suspension of sentence must, in a broad sense, have relevance to what the Code indicates except where special circumstances call for a different course.
Moreover, the advocates who participated many of them did covered the wider area of release under the Code, whether with or without sureties, and that is why we consider the relevant provisions of the Code in some detail.
Let us now examine whether there is anything in the Provisions of the Code which make this meaning clearly untenable.
A semantic smog overlays the provisions of bail in the Code and prisoners ' rights, when cast in ambiguous language become precarious.
Where doubts arise the Gandhian talisman becomes a tool of interpretation: "Whenever you are in doubt. apply the following test.
Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use of him.
" Law, at the service of life, must respond interpretatively to raw realities and make for liberties.
Primarily Chapter XXXIII is the nidus of the law of bail.
436 of the Code speaks of bail but the proviso makes a contradistinction between 'bail ' and 'own bond without sureties '.
Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence is prepared to give bail '.
Here, 'bail ' suggests 'with or without sureties '.
And, 'bail bond ' in Sec.
436(2) covers own bond.
437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years o age, sick or infirm people and women.
It cannot be that a small boy or sinking invalid or pardanashin should be refused release and suffer stress and distress in prison unless sureties are haled into a far off court with obligation for frequent appearance ! 'Bail ' there suggests release, the accent being on undertaking to appear when directed, not on the production of sure ties.
But Sec.
437(2) distinguishes between bail and bond without sureties.
445 suggests, especially read with the marginal note that deposit of money will do duty for bond 'with or without sureties.
441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation of bail as covering own bond with and without sureties.
Superficially viewed, it uses the words 'bail ' and 'own bond ' as antithetical, if the reading is literal.
Incisively 346 understood, Sec.
441(1) provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub section.
To read 'bail ' as including only cases of release with sureties will stultify the sub section; for then, an accused released on his own bond without bail, i.e., surety, cannot be conditioned to attend at the appointed place.
441(2) uses the word 'bail ' to include 'own bond ' loosely as meaning one or the other or both.
Moreover, an accused in judicial custody, actual or potential, may be released by the court to further the ends of justice and nothing in Sec.
44 1( 1 ) compels a contrary meaning.
441(2) and (3) use the word 'bail ' generically because the expression is intended to cover bond with or without sureties.
The slippery aspect is dispelled when we understand the import of Sec.
389(1) which reads: 389 (1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
The court of appeal may release a convict on his own bond without sureties.
Surely.
it cannot be that an under trial is worse of than a convict or that the power of the court to release increases when the guilt is established.
It is not the court 's status but the applicant 's guilt status that is germane.
That a guilty man may claim judicial liberation pro tempore without sureties while an undertrial cannot is a reduetio ad absurdam.
Likewise, the Supreme Court 's powers to enalage a prisoner, as the wide words of order 21 Rule 27 (Supreme Court Rules) show, contain no limitation based on sureties.
Counsel for the State agree that this is so, which means that a murderer, concurrently found to be so may theoretically be released on his own bond without sure .
ties while a suspect, presumed to be innocent, cannot be.
Such a strange anomaly could not be, even though it is true that the Supreme Court exercises wider powers with grater circumspection.
The truth, perhaps, is that indecisive and imprecise language is unwittingly used, not knowing the draftsman 's golden rule: "In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand." (Lux Genthum Lex Then and Now 1799 1974, p. 7) 347 If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with, after being found guilty if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, suretyship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on The, provisions.
The hornet 's nest of Part 111 need not be provoked it read 'bail ' to mean that it popularly docs, and lexically and in American Jurisprudence is stated to Mean, viz., a generic expression used to describe judicial release from Custodia.
Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigent 's rights, we hold that bail covers both release on one 's own bond, with or without sureties.
When sureties should be demanded and what sum should be insisted on are dependent on variables.
Even so, poor men Indians in monetary terms indigents young persons infirm individual and women are weak categories and courts should be liberal in releasing them on their own recognisances put whatever reasonable condition you may.
It Shocks one conscience to ask a mason like the petitioner to Furnish sureties for Rs. 100,000/ The magistrate must be given the benefit of doubt for not fully appreciating that our Constitution.
enacted by 'We the People of India ' ' is meant for the butcher , the baker and the candle stick maker shall we add , the bonded labour and pavement dweller.
To add insult to injury, the magistrate has demanded sureties from his own district.
(We assume the allegation in the petition).
What is a Malayalee, Kannadiga, Tamilian or Andhra to do if arrested for alleged misappropriation or them or criminal trespass in Bastar , Port Blair ,Port Blair .
Pahalgaam of Chandni Chowk? He cannot have sureties owning properties in these distant places.
He may not know any one there and might have come in a batch or to seek a job or in a morcha .
Judicial disruption of Indian unity is surest achieved buy such provincial allergies.
What law prescribes sureties from outside or non regional linguistic, some times legalistic.
applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic , sometimes linguistic, some times legalistic.
Art 14 protects all Indians qua Indians, within the territory of India.
Art 350 sanctions representation to any authority.
including a court, for redress of grievances in any language used in the Union of India .
Equality before the law implies theat even a vakalat 6 526 SCI/78 348 or affirmation made ill any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists.
Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities.
This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland.
Swaraj is made of united stuff.
We mandate the magistrate to release the petitioner on his own bond in a sum of Rs. 1,000/ .
An After word We leave it to Parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community, membership of stable organizations, should prevail for bail bonds to ensure that the 'bailee ' does not flee justice.
The best guarantee of presence in court is the reach of the law, not the money tag.
A parting thought.
If the indigents are not to be betrayed by the law including bail law re writing of many processual laws is in urgent desideratum; and the judiciary will do well to remember that the geo legal frontiers of the Central Codes cannot be disfigured by cartographic dissection in the name of language of province.
S.R. Petition allowed.

summary/full:
Pursuant to the directions of the Supreme Court for releasing the petitioner appellant "on hail to the satisfaction of the Chief Judicial Magistrate," the Magistrate ordered that a surety in a sum of Rs. 10,000/ be produced.
When the petitioner produced one.
the magistrate made an odd order refusing to accept the suretyship of the petitioner 's brother because he and his asset were in another district.
Frustrated by magisterial intransigence the prisoner moved, this Court again to modify the original order "to the extent that the petitioner be released on furnishing surety to the tune of Rs. 2,000/ or on executing a personal bond or pass any other order or direction as this Hon 'ble Court may deem fit and proper".
Directing the Magistrate to release the petitioner on his own bond in a sum of Rs. 1,000/ the Court, ^ HELD: (1) Social Justice is the signature tune of our Constitution and the littleman in peril of losing his liberty is the consumer of social justice.
And the grant of bail can be stultified or made impossibly inconvenient and expensive if the Court is powerless to dispense with surety or to receive an Indian bailor across the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive.
The problem is plainly one of human rights, especially freedom vis a vis, the lowly and necessitates the Supreme Court to interdict judicial arbitrariness deprivatory of liberty and ensure "fair procedure" which has a creative connotation after Maneka Gandhi [1978] 2 SCR 621.
[338 C F. 339 A B] (2) Bail covers release on one 's own bond with or without sureties, as the legal literature, Indian and Anglo Amemrican on bail jurisprudence lends countenance and the need for liberal interpretation in areas of social justice, individual freedom and indigent 's rights justifies.
When sureties should be demanded and what sum should be insisted on are dependent on variables.
[344 G, 347 C] (3) A semantic smog overlays the provisions of bail in the Code and prisoners ' rights, when cast in ambiguous language become precarious.
[345 C] (a).
'Bail ' in section 436 of the Criminal Procedure Code suggests 'with or without sureties.
And, 'bail bond` in section 436(2) covers own bond.
[345 E] (b) 'Bail ' in section 437 (2) suggests release, the accent being on undertaking to appear.
when directed, not on the production of sureties.
But section 137(2) distinguishes between bail and bond, without sureties.
[345 F G] 336 (c) Section 445 suggests, especially read with the marginal note that deposit of money will do duty for bond 'with or without sureties '.
[345 G] (d) Superficially viewed, section 441 ( 1 ) uses the words 'bail ' and 'own bond ' as antithetical, if the reading is liberal.
Incisively understood, Section 441(1) provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub section.
To read "ail" as including only cases of release with sureties will stultify the sub section, for then, an accused released on his own bond without bail, i.e. surety, cannot be conditioned to attend at the appointed place.
Section 441(2) uses the word 'bail ' to include 'own bond ' loosely as meaning one or the other or both.
Moreover, an accused, in judicial custody, actual or potential, may be released by the Court to further the ends of justice and nothing in s 441(1) compels a contrary meaning.
section 441(2) and (3) use the word 'bail ' generically because the expression is intended to cover bond with or without sureties; [345 H, 346 A C] (e) When the Court of appeal as per the import of section `389(1) may release a convict on his own bond without sureties, surely, it cannot be that an undertrial is worse off than a convict or that the power of the Court to release increases when the guilt is established.
It is not the Court 's status but the applicant guilt status that is germane.
That a guilty man may claim judicial liberation pro tempore without sureties while an undertrial cannot, is a reductio ad absurdum.
[346 D E] (5) The Supreme Court 's powers to enlarge a prisoner, as the wide words of order 21 Rule 27 (Supreme Court Rules 1966) show, contain no limitation based on sureties, which means that a murderer, concurrently found to be so, may.
theoretically be released on his own bond without sureties while a suspect, presumed to be innocent cannot be.
Such a strange anomaly could not be, even though it is true that the Supreme Court exercises wider powers with greater circumspection.
[346 F G] (6) If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with.
after being found guilty, if during the trial when the presence to District lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, suretyship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on the provisions.
The hornet 's nest of Part III need not be provoked if the Court reads 'bail ' to mean that it popularly does.
and lexically and in American Jurisprudence is stated to mean, viz. a generic expression used to describe under release from custodia juris.
[347 A B] (7) article 14 protects all Indians qua Indians, within the territory of India.
article 350 sanctions representation to any authority, including a Court, for redress of grievances in any language used in the Union of India.
Equality before the law implies that even a vakalat or affirmation made in and State language according to the law in that State must be accepted everywhere in the territory of India, same where a valid legislation to the contrary exists.
Otherwise, an Adivasi will be unfree in Free India, and likewise many other minorities.
The process of making Indians aliens in their own homeland should be inhibited.
Swaraj is made out of united stuff.
The best guarantee of presence in Court is the reach of law, not the money tag.
[347 G H, 348 A B, D] The Court left open to the Parliament to consider whether in our socialist republic with social justice as its hallmark, monetary supersti 337 tion, not other relevant consideration like family ties, roots in the community, membership of stable organisations should prevail or bail bonds to ensure that the 'bailee ' does not flee justice.]


judgement:
tition No. 4305 of 1978.
Under Article 32 of the Constitution.
N. M. Ghatate and section V. Deshpande.
for the Petitioner Soli J. Sorabjee, Addl.
General and Girish Chandra for the Respondent.
The order of the Court was delivered by KRISHNA IYER, J. A litigation with a social dimension, even in a blinkered adversary system, serves a larger cause than the limited lis before the court.
This petition, with non specific reliefs, is One such.
Sobraj, the petitioner, by the frequency of his forensic com plaints against incarceratory torture and Dr. Ghatate, his counsel by the piquancy of his hortative advocacy of freedom behind bars.
have sought to convert the judicial process from a constitutional sentinel of prison justice which, emphatically, it is into a meticulous auditor general of jail cells which, pejoratively, it is not although, on occasions, 'thin partition do their bounds divide`.
Often, as here, the fountain of confusion in penitentiary jurisprudence is forgetfulness of fundamentals.
Once the legal basics are stated, Sobraj, with his disingenuous, finical grievances, will be out of court.
What are the governing principles, decisionally set down by this court in Batra and Sobraj? Has the court jurisdiction to decide prisoners ' charges of violation of rights ? If it has, can it meddle with the prison administration and its problems of security and discipline from an 'innocent ' distance ? Put tersely, both the 'hands off.
doctrine and the 'take over ' theory have been rebuffed as untenable extremes and a middle round has been found of intervening when constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner and declining where lesser matters of institutional order and man management, though irksome to some, are alone involved.
Contemporary profusion of prison torture reports makes it necessary to drive home the obvious, to shake prison top brass from the callous complacency of unaccountable autonomy within that walled off world of human held incommunicado.
Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner 's prejudice, this Court 's writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law.
Then the 515 parrot cry of discipline will not deter, of security will not scare of discretion will not dissuade, the judicial process.
For if courts 'cave in" when great rights are gouged within the sound proof, sight proof precincts of prison houses, where, often, dissenters and minorities are caged, Bastilles will be re enacted.
When law and tyranny begins: and history whispers, iron has never been the answer to the rights of men.
Therefore we affirm that imprisonment does not spell farewell to fundamental rights although, by a realistic re appraisal, courts will refuse to recognise the full panoply of Part III enjoyed by a citizen.
This proposition was not contested by the learned Additional Solicitor General Sri Soli Sorabjee.
Nor does its soundness depend, for us, upon the Eighth Amendment to the U.S. Constitution.
article 21, read with article 19(1) (d) and (5), is capable of wider application than the imperial mischief which gave its birth and must draw Its meaning from the evolving standards of decency and dignity that mark the progress of a mature society, as Batra and Sobraj have underscored and the American judges have highlighted.
Fair procedure is the soul of article 21, reasonableness of the restriction is the essence of article 19(S) and sweeping discretion degenerating into arbitrary discrimination is anathema for article 14.
Constitutional kurana is thus injected into incarceratory strategy to produce prison justice.
And as an annotation of article 21, this Court has adopted, in Kharak Singh 's case(I) that expanded connotation of 'life ' given by Field, J. which we quote as reminder: "Something more than mere animal existence.
the inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world".
The next axiom of prison justice is the court 's continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or liberty is not exceeded, subverted or stultified lt is a sort of solemn covenant running with the power to sentence.
The U.S. Courts have intensified their oversight of State penal facilities reflecting a heightened concern with the extent to which the ills that plague so called correctional institutions violate basic rights.
points out Edward section Crowin.
Although.
the learned author, and.
(1) [1964] I SCR 357.
(2) Supplement to Edward section Corwin 's "The constitution ' and What it means Today; 1976 Edn.
p. 245.
516 indeed, the decisions show that reliance is placed on the Eighth: Amendment, as we have earlier pointed out.
the same.
sensitized attention and protective process emanate from the humane provisions of Part III of our Constitution.
Viewed differently, supposing, a court sentences a person to simple imprisonment or assigns him 'B ' class treatment and the jail authorities unwittingly or vindictively put him under rigorous imprisonment or subject him to 'C ' class treatment, does it not show contempt of the court 's authority and deprivation of liberty beyond a degree validated by the court warrant ? Likewise, where a prisoner is subjected to brutality, exploiting the fact that he is helplessly within the custody of the Jail Administration, does it not deprive the prisoner of his life and liberty beyond the prescribed limits set by the court ? Yet again, where conditions within a prison are such that inmates incarcerated therein will inevitably and necessarily become more sociapathic than they were prior to the sentence, is not the court ' punitive purpose, charged with healing hope, stultified by the prison authorities ? of course, where a prison practice or internal instruction places harsh restrictions on jail life, breaching, guaranteed rights.
the court directly comes in.
Every prison sentence is a conditioned deprivation of life and liberty, with civilised norms built in and unlimited trauma interdicted.
In this sense, judicial policing of prison practices is implied in the sentencing power.
The Criminal judiciary have thus a duty to guardian their sentences and visit prisons hen necessarily.
Many of them do not know or exercise this obligation.
Another jurisdictional facet may be touched upon in view of the widely worded relief sought to treat Sobraj 'in a human and dignified manner, keeping in view the adverse effect of` his confinement upon his mental and physical conditions .
The penological goals which may be regarded as reasonable justification For restricting the right to move freely within the confines of a penitentiary are now well settled.
And if prisoners have title to Article 19, 21 and 14 rights, subject to the limitation we have indicated, there must be some correlation between deprivation of freedom and the legitimate functions of a correctional system.
It is now well settled, as a stream of rulings of courts proves, that deterrence, both specific and general, rehabilitation and institutional security are vital considerations.
Compassion wherever possible and cruelty only where inevitable is the art of correctional confinement.
When prison policy advances such a valid goal, the court will not intervene officiously.
517 This overall attitude was incorporated as a standard by the American National Advisory Commission on Crimine Justice Standards and Goals: '. .
A rehabilitative purpose is or ought to be implicit in every sentence of an offender unless ordered otherwise by the sentencing court ' '.(l) The U.S. Supreme Court summed up: "In a series of decisions this court has held that, even though the governmental purpose be legitimate anti substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the and can by more narrowly achieved.
The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving, the same basic purpose."( ') But when an inmate is cruelly restricted in a manner which supports no such relevant purpose the restriction becomes unreasonable and arbitrary and unconstitutionality is the consequence.
Traumatic ` futility is obnoxious to pragmatic legality.
Social defence is the raison of the penal code and bears upon judicial control over prison administration.
If a whole atmosphere of constant fear of violence, frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care arid comfort necessary to sustain life are refused then also the humane jurisdiction of the court will become operational based on article 19 '.
Other forms of brutal unreasonableness and anti rehabilitative attitude violative of constitutionality may be thought of in n penal system but we wish to lay down only a broad guideline that where policies.
with a 'Zoological touch ', which do not serve valid penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as to frustrate the ability of inmates to engage in rehabilitations.
the court is not helpless.
However as prison system may make rational distinctions in making assignments to inmates of vocational.
educational Land work opportunities available but it is constitutionally impermissible to do sc without as functional classification system.
The mere fact that a prisoner is poor or rich, high born or ill bred, is certainly irrational as a differential ill a secular socialist high republic '.
Since the petitioner charges the jail staff with barbaric and inhuman treatment in prison we are called upon to delineate the broad boundaries of judicial jurisdiction vis a vis prison administration and prisoner 's rights.
(I) "To solve The age old Problem of crime" Roger Lanphear; J. D. p 19 (2) Ibid pr 21 518 The court is reluctant to intervene in the day to day operation of the State penal system; but undue harshness and avoidable tantrums, under the guise of discipline and security, gain no immunity from court writs.
The reason is, prisoners retain all rights enjoyed by free citizens except those lost necessarily as an incident of confinement.
Moreover, the rights enjoyed by prisoners under Articles 14, 19 and 21, though limited, are not static and will rise to human heights when challenging situations arise.
Cooper(1) and Menaka Gandhi(2) have thus compulsive consequence benignant to prisoners.
The petitioner in the present case has contended that barbaric and inhuman treatment have been hurled at him and that intentional discrimination has been his lot throughout.
These allegations invited us to examine the limits and purpose of judicial jurisdiction but we have to apply the principles so laid down to the facts of the present case.
Starry abstractions do not make sense except in the context of concrete facts.
That is why we agree with the propositions Of law urged by Dr. Ghatate but disagree with the distress and discrimination his client wails about.
True, confrontedm with cruel conditions of confinement, the court has an expanded role.
True, the light to life is more than mere animal existence, or vegetable subsistence.(3) True, the worth of the human person and dignity and divinity of every individual inform articles 19 and 21 even in a prison setting.
True, constitutional provisions and municipal laws must interpreted in the light of the normative laws of nations, wherever possible and a prisoner does not forfeit his Part lII rights.
But that are the facts here ? Charles Sobraj is no longer an under trial.
having to serve two sentence of long imprisonment.
He is given all the amenities of .1 'B ' class prisoner.
He goes on hunger strike but medical men take care of him.
Ward I, where he is lodged, gives him the facilities of wards XIll and XIV where he wants to he moved.
He has record of one escape and one attempt at suicide and Interpol reports of many crimes abroad.
There are several cases pending in India against him.
Even so, the barbarity of bat fetters inflicted on him lay a qualmless jail staff was abandoned under orders of this Court.
he seeks the other extreme of of coddling as if a jail were a country club or good hotel.
Give me finer foreigners as companions.
he demands.
Don 't keep convict cooks and warders as (1) [1971] l SCR Sl2.
(2) [1978] l SCR 248 (3) Mohammed Giasuddin vs State of Andhra Pradeh.
; 519 jailmated in my cell he rails.
Remove me from a high security ward like Ward I to a more relaxed ward like Ward 14 or 13, he solicits.
These delicate and genteel requests from a prisoner with his record and potential were turned down by the Superintendent and the reasons for such rejection, based on security, rules and allergy of other inmates to be his risky fellow inmates have been stated on oath.
We cannot be critical of the Administration if it makes a classification between dangerous prisoners and ordinary prisoners.
In the present case, the Superintendent swears, and it is undisputed, that the petitioner is not under solitary confinement.
We further aver that a distinction between under trials and convicts is reasonable and the petitioner is now a convict.
In fact, lazy relaxation on security is a professional risk inside a prison.
The court must not rush in where the jailor fears to tread.
While the country may not make the prison boss the sole sadistic arbiter of incarcerated humans, the community may be in no mood to hand over central prisons to be run by courts.
Each instrumentality must sanction within its province.
We have no hesitation to hold that while Sobraj has done litigative service for prison reform, he has signally failed to substantiate any legal injury.
We, therefore, dismiss the writ petition, making it clear that strictly speaking the petitioner being a foreigner cannot claim rights under article 19, but we have discussed at some length the import of Articles 14, 19 and 21 because they are interlaced and in any case apply to Indian citizens.
, Petition dismissed.
S.R. Petition dismisses.

dataset_name: IN-Abs

summary/full:
The petitioner a convict having to serve two sentences of long imprisonment, plus record of one escape and one attempt of suicide and interpol.
reports of many crimes abroad in addition to several cases pending in India against him, through this writ petition contended that barbarity and inhuman treatment have been hurled at him and that intentional discrimination has been his lot throughout and, therefore sought the assistance or this Court for directing the jail authorities to give him finer foreigner as companions, and to remove him from a high security ward like Ward l to a more relaxed ward, be invoking the provisions of Articles 14, 19 and 21 of the Constitution.
Dismissing the Writ Petition the Court, ^ HELD: (1) Imprisonment does not spell farewell to fundamental rights although, by a realistic re appraisal,, Courts will refuse to recognise the full panoply of Part lII of the Constitution enjoyed by a free citizen.
Whenever fundamental rights are flouted or legislative protection ignored to any prisoner 's prejudice, this Court 's writ will run breaking through stone walls and iron bars, to right the wrong and restore the rule of law.
Then the parrot cry of discipline thrill not deter, of security will not scare, of discretion will not dissuade, the judical process.
For if courts 'cave in ' when great rights and sound within the sound proof, sight proof precincts of prison houses where often disenters and minorities are caged, Bastilles will be re enacted.
When law ends tyranny begins, and history whispers, iron has never ben the answer to the rights of men.[514 H, 515 A Bl (2) article 21 of the Constitution read with article 19(1)(d) and (5) is capable of wider application than the imperial mischief which give its birth and must draw its meaning from the evolving standards of decency and dignity that mark the progress of a mature society.
Fair procedure is the soul of article 21, reasonableness of the restriction is the essence of article 19(5) and sweeping discretion degenerating into arbitrary discrimination is anthema for article 14.
Constitutional Karuna is thus injected into incarceratory strategy to produce prison justice.
[ 515 CD] Sunil Batra vs Delhi Admn.
& ors.
and Charles Gurumukh Sobraj.
State of Delhi [1979] I SCR 392 referred to, 513 Kharak Singh vs State of U.P. ; applied.
(3) Prison justice implies Court 's continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or liberty is not exceeded, subverted or stultified.
It is a sort of solemn covenant running with the power to sentence.
Where a prison practice or internal instruction places harsh restrictions on jail life, breaching guaranteed rights, the Court directly comes in.
Every prison sentence is a conditioned deprivation of life auld liberty.
with civilized norms built in and unlimited trauma interdicted.
In this sense judicial policy of prison practices is implied in the sentencing power.
The Criminal judiciary have thus a duty to guardian their sentences and visit prisons when necessary.
The penological goals which may be regarded as reasonable justification for restricting the right to move freely within the confines of a penitentiary are now well settled.
And if prisoners have title to Articles 19, 21 and 14 rights, subject to the limitations, there must be some correlation between depriviation of comfort and legitimate function of a correctional system.
[515 G, 516 E, F G] (4 ) Deterrence, both specific and general rehabilitation, and institutional security are vital considerations.
Compassion wherever possible and cruelty only where inevitable is the art of correctional confinement.
When prison policy advances such a valid goal, the Court will not intervene officiously.
But when an inmate is cruelly restricted in a manner which supports no such relevant purpose, the restriction becomes unreasonable and arbitrary, and unconstitutionality is the consequence.
Traumatic futility is obnoxious to pragmatic legality.
Social defence is the raison d 'etre of the penal code and bears upon judicial control over prison administration.
If a whole atmosphere of constant fear of violence, frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care and comfort necessary to sustain life are refused, then also the humane jurisdiction of the Court will become operational based on article 19.
[516 G H, 517 D E] 5) Prisoners retain all rights enjoyed by free citizens except those lost necessarily as an incident of confinement.
Rights enjoyed by prisoners under Arts 14, 19 and 21 though limited are not static and will rise to human heights when challenging situations arise.
[518 A B] R. C. Cooper vs Union of India, ; Menaka Gandhi vs F Union of India & Anr., , Mohammad Giasuddin vs State of Andhra pradesh ; referred to.
(6) However, a prison system may make rational distinctions in making assignments to inmates of vocational, educational and work opportunities available but it is constitutionally impermissible to do so without a functional classification system.
Courts cannot be critical of the administration if it makes a classification between dangerous prisoners and ordinary prisoners.
A distinction between the under trials and convicts is reasonable.
In fact lazy relaxation on security is a professional risk inside a prison.
[517 F, (G, 519 B, Cl 'The petitioner being a foreigner cannot claim rights under article 19.
Moreover he is now a convict and is not in solitary confinement.
[519 D] OBSERVATlON: [The Court must not rush in where the jailor fears to tread.
While the country may not make the prison boss the sole sadistic arbiter of incarcerated 514 human, the community may be in no mood to handover central prisons to be run by Courts Each instrumentality must function within its province)


judgement:
Civil Appeal No. 1083 of 1978.
Appeal by Special Leave from the Judgment dated 23 2 77 of the Madras High Court in C.R.P. No. 356 of 1977 Y. section Chitale, Vineet Kumar and A. K. Srivastava for the Appellant.
A. V. Rangam for the Respondent.
553 The Judgment of the Court was delivered by A KRISHNA IYER, J.
Arbitrary orders and mystical directions have poor mileage in this Court when irrelevance and unreason are writ on their face even though the sanctity of concurrent error may give them some shelter.
To ply a contract carriage is a fundamental right hut it can be restricted reasonably as has been done by the .
The perspective is that what is fundamental is the right, not the restriction .
Here , one Mudaliar.
the appellant, owner a luxury coach, plied it for public benefit under a permit of 1971 for five years.
The statutory criteria for grant of such permits is set out in section 50 and renewals of permits must be governed by the same considerations, the procedure being regulated by section 58.
There is no grievance made that procedure violations are involved here.
All that we know is that the permit was to expire in March 1976 and so a renewal application was made two months earlier.
The State Transport Authority (for short, S.T.A.) rejected the request for renewal on the score that the 'ITDC has expanded its activities ' and has in the field many tourist vehicles.
Then the Authority added: 'lt is said that the utilization of these vehicles is in the range of 90 to 100 per cent during the tourist season only (November to February) and that it is just 60 to 70%" during" other periods '.
The Tamil Nadu State 's transport system also has vehicles on the road and some spare buses.
All told, a few hundred motor vehicles, some of which arc stage carriages and some contract carriages, serve the travelling, public on these statements, the conclusion was reached: 'The State Transport Authority therefore considers that the facilities provided by these public sector undertakings are adequate.
Renewal of the applicants permit will not only be redundant in the circumstances but also result in healthy competition '.
The order does not indicate that anyone appeared and objected.
The State Transport Appellate Tribunal (S.T.A.T., to use an acronym ).
On appeal under section 64 affirmed the rejection, using the same reasoning.
About the abundant transport facilities developed since 1971 the Tribunal said: 'The learned counsel for the appellant has no doubt stated that there is no material to hold the details (occurring at para 2 of the order) to be correct.
The State Transport Authority is dealing with the provision of transport in the State level and he is expected to be in touch with the details of the availability of service from different sources and those particulars furnished by the S.T.A, could not also be said to be in anyway strange.
As the authority is having these details readily available it was open to the authority, to 554 rely upon those details before coming to conclusion bout the need for renewal as asked for by appellant.
It is not therefore proper to comment on the details made available in para 2 of the order '.
He obscurely encored, without any facts, that there would be 'unhealthy competition.
What is truly occult is the casual dismissal of unanswerable factor: 'The appellant has stated in his affidavit that in as much as applications have been called for, for the grant of 100 tourist cabs, 15 omni buses and 10 omni tourist buses for the State of Tamil Nadu, the comment about the absence of need for renewing the permit as made by the State Transport Authority is not proper .
The Departmental Representative has filed a Memo.
Of objection stating that application ave been called for the sinner of permits valid to ply throughout India and the same is not relevant material, as the applicant 's permit is in respect of the State of Tamil Nadu alone.
The learned counsel for the appellant would contend that for the limited purpose of making out that there is need for additional service, this factor may also be considered '.
No doubt, it is admitted that applications have been called for, for the issue of permits to be effective all over India.
The appellant 's permit is having a restricted application within the State.
As such as fact that applications have been called for the grant of All India Permits does not in any way become relevant or important and the same can be ignored '.
The STAT has countered the appellants claim of meritorious service by reference to past infirmities not adverted to anywhere in the order of the STA The High Court, in revision, washed its hands off the case by the observation: 'It is not for this court to traverse into these questions of fact And find out whether there is any need for adequacy under the revisional jurisdiction.
How many permits the India Tourism Development Corporation should have been granted is not the subject matter of this revision petition.
This concerns merely with the refusal to renew the permit which, in my view, has been done on very valid and tenable reasons '.
The whole issue has been made more fishy by the STA granting two contract carriage permits in 1978 after rejecting the renewal application holding there were already too many vehicles.
Should the court interfere under article 136 ? ordinarily, No. But if ' a small man, whose heavy investment in a tourist coach is to be sterilised altogether it is a social trauma; 'and if fundamental rights are disposed of as if by executive fiats, this Court must intervene to uphold the credibility hl the rule of law and prevent its derailment.
The touch stone is not the little man and his little lis but the Large issue and the deep portent.
555 S.50 specifies the guidelines.
The transport tribunals function quasi judicially and this imports some imperatives.
You must tell the men whose fundamental right you propose to negative the materials you may use in your decision.
You must act on relevant considerations, properly before you, not on rumour or hearsay, ex cathedra assertions or inscrutable hunch.
The Authority must, remember that a permit holder has an ordinary right of renewal unless it is shown that outweighing reasons of public interest lead to a contrary result.
Permits are not bounty but right, restricted reasonably by the .
The key criterion when a contract carriage permit is sought, is to ask oneself whether an extra vehicle is unnecessary or undesirable in the public interest, and whether, further, the permits already granted are sufficient for or in excess of the needs of the region.
After all, a few hundred vehicles admittedly ply and one contract carriage operator is asking for a single permit.
What makes it unnecessary or undesirable in the public interest ? ordinarily, having regard to the explosive increase in traffic in our country, more vehicles are needed.
Of course if the roads are in a precarious condition or competitive racing or reckless driving on the roads make for hazards or if the operator is otherwise disqualified one may reduce the number of vehicles and refuse permit or renewal.
Nothing of the sort is mentioned in any of the orders rejecting the permit.
Assuming there are around 300 or 400 motor vehicles, how does one more become too many ? It is a preposterous proposition to say so, in the absence of some evidence.
If there is no evidence to warrant such a conclusion.
the right to the permit must prevail.
Is there any evidence in this case ? The Authority asserts that the utilisation of existing vehicles is of the order of '90 to 100 per cent ' during the tourist season.
This indicates that at least during the tourist season one more tourist coach will be welcome to relieve congestion.
The Authority further states that it is said . "just 60 to 70 per cent" Is utilised during the other period.
"It is said" by whom, to whom, when, how, and was it put to the applicant ? All this is shrouded in mystery.
Whatever is said by someone, somewhere, is not material here.
It must be on the record.
While the STA may know the total number of vehicles on the road it must have made a study of specific materials to ascertain whether there is unused vehicular potential.
Merely to rely on 'it is said ' 'in the passive voice is not judicial.
Moreover, not to put it to the applicant before rejecting his renewal is not fair.
The bare ipse dixit that the 'State Transport Authority considers the facilities provided by public sector undertakings are adequate ', is 556 not intelligible, without some basis.
Nor does 'public sector ' and 'private sector ' enter the picture.
Some objective assessment to exclude the petitioner based on tangible data is the minimum for a judicial negation of a fundamental right.
The reference to 'unhealthy competition ' is baffling.
If there are 300 or more buses and one more is sought to be added, what is the ill health in the traffic system that will be injected by this addition ? We must remember that the tourist coach of the petitioner is to travel all round Tamil Nadu and so the image of a particular route overcrowded with too many buses making for cut throat competition and imperilling passenger 's lives does not arise.
The STA has no research staff to investigate the untapped transport or traffic potential and if it has any, such report must be put to the applicant.
Moreover.
, it is obvious that the State Transport Authority should have granted one permit less to the ITDC, if its case of redundancy were true.
For, the appellant had a current permit then Another circumstance effectively negating the story of super numerary vehicles is the admitted fact that applications for more permits have been invited and some granted.
And before us two orders granting permits for contract carriages since the impugned refusal have been filed.
And yet Mudaliar goes to the wall, on a cavalier `no ' to his application for renewal.
Fair consideration of his claim has been denied to the appellant; his huge investment has gone to waste because of non renewal.
We see no relevant ground justifying the order; there is breach of natural justice; there is importation of non materials; there is unawareness of the fact that a fundamental right is involved and that a costly coach is condemned to non use.
The basic reason for quashing the order of refusal is the untenable reason assigned to support the order.
We allow the appeal, set aside the refusal of renewal and having regard to the 'long delay and absence of disqualifications direct the State Transport Authority to reconsider the grant or renewal within two weeks of receipt of this order.
We repeat for emphasis that ordinarily this Court is loath to reinvestigate questions relating to motor vehicle permits; but every rule has an exception even as every case has a martyr.
M.R. Appeal allowed.

summary/full:
The appellant plied a luxury coach for public benefit under a permit o 1971 for five years, in the Tamil Nadu State.
He applied for a renewal of the permit two months prior to its expiry, but was refused the same by the State Transport Authority, on the ground that the facilities provided by tho public sector undertakings were adequate, and the renewal of the applicant 's permit would be redundant in the circumstances and also result in unhealthy competition.
Applications for more permits were invited and some granted since the impugned refusal.
On appeal u/s 64 of the .
the State Transport Appellate Tribunal affirmed the rejection, using the same reasoning.
Thereafter the High Court rejected the appellant 's revision application, refusing to go into questions of fact.
Allowing the appeal, the Court, ^ HELD: 1.
If a small man, whose heavy investment in ll tourist coach is to be sterilised altogether, it is a social trauma, and if fundamental rights are disposed of as if by executive fiats, this Court must intervene under article 136, to uphold the credibility in the rule of law and prevent its derailment.
The touchstone is not the little man and his little lis.
but the large issue and the deep portent.
[554 G H] 2.
The Authority must remember that a permit holder 1st has an ordinary right of renewal unless it is shown that outweighing reasons of public interest lead to a contrary result.
The bare ipse dixit that the S.T.A. considers the facilities provided by public sector undertakings are adequate is not intelligible, without some basis.
Some objective assessment to exclude the petitioner, based on tangible data is the minimum for a judicial negation of a fundamental right.
Another circumstance effectively negating the story of supernumerary vehicles is the admitted fact that applications for more permits have been invited and some granted.
The basic reason for quashing the order of refusal is the untenable reason assigned to support the order.
[555 A, H, 556 A, D, F]


judgement:
Civil Appeal No. 656 of 1978.
Appeal by Special Leave from the Award dated 21 9 1977 of the Labour Court, Meerut in Adjudication Case No. 160/74.
G. B. Pia, L. R. Singh, R. P. Singh, R. K. lain, Suman Kapoor and Sukumar Sahu for the Appellant.
R. K. Garg, V. J. Francis and Madan Mohan for Respondent No. l. G. N. Dikshit and o. P. Rana for Respondents 2 3.
The Judgment of the Court was delivered by F DESAI J.
This appeal by special leave, limited to the question of grant of back wages, raises a very humane problem in the field of industrial jurisprudence, namely, where termination of service either by dismissal, discharge or even retrenchment is held invalid and the relief of reinstatement with continuity of service Is awarded what ought to be the criterion for grant of compensation to the extent of full wages or a Part of it ? A few relevant facts will highlight the problem posed.
Appellant is a private limited Company having set up an industrial unit in engineering industry.
The raw material for its manufacturing process is tin plates.
The appellant served notice of retrenchment on 56 workmen in February 1974 alleging non availability or raw material to utilise the full installed capacity, power shedding limiting the 566 working of the Unit to 5 days a week, and the mounting loss.
Subsequently, negotiations took place between the Union and the appellant leading to an agreement dated 1st April 1974 whereby the workmen who were sought to be retrenched were taken back in service with continuity of service by the appellant and the workmen on their part agreed to co operate with the management in implementing certain economy measures and in increasing the productivity so as to make the undertaking economically viable.
Simultaneously, the workmen demanded a revision of the wage scales and the appellant pleaded its inability in view of the mounting losses.
Some negotiations took place and a draft memorandum of settlement was drawn up which provided for revision of wages on the one hand and higher norms of production on the other, but ultimately the settlement fell through.
Appellant thereafter on 1st July, 1974 served a notice of retrenchment on 43 workmen.
The Tin Workers ' Union, Ghaziabad, espoused the cause of such retrenched workmen and ultimately the Government of Uttar Pradesh by its notification dated 9th october 1974, issued in exercise of the power conferred by Section 4 K of the U.P. lndustrial Disputes Act, 1947.
referred the industrial dispute arising out of retrenchment of 43 workmen, between the parties, for adjudication to the Labour Court.
Names of the retrenched workmen were set out in an Annexure to the order of reference.
The Labour Court, after examining the evidence led on both sides and considering various relevant circumstances, held that the reasons stated in the notice dated 1st July, 1974, Ext.
E 2, viz., heavy loss caused by non availability of tin plates, persistent power curbs and mounting cost of production were not the real reasons for affecting retrenchment but the real reason was the annoyance felt by the management consequent upon the refusal of the workmen to agree to the terms of settlement contained in the draft dated 5th April, 1974 and, therefore, the retrenchment was illegal.
The Labour Court by its award directed that all the workmen shall be reinstated in service from 1 st August, 1974 with full back wages, permitting the appellant to deduct any amount paid as retrenchment compensation from the amount payable to the workmen as back wages.
the Appellant challenged the Award in this appeal.
When the special` leave petition came up for admission Court rejected the special leave petition with regard to the relief of reinstatement but limited the leave to the grant of full back wages.
The question whether the workmen who were retrenched were entitled to the relief of reinstatement is no more open to challenge.
Another words.
it would mean that the retrenchment of workmen was invalid for the reasons found by the Labour Court and the workman were 567 entitled to the relief of reinstatement effective from the day on which A they were sought to be retrenched.
The workmen were sought to be retrenched from 1st August, 1974 and the Labour Court has directed their reinstatement effective from that date.
The Labour Court has also awarded full back wages to the workmen on its finding that the retrenchment was not bona fide and that the non availability of the raw material or recurrent power shedding and lack of profitability was a mere pretence or a ruse to torment the workmen by depriving them of their livehood, the real reason being the annoyance of the appellant consequent upon the refusal of the workmen to be a party to a proposed settlement by which work load was sought to be raised(l.
Mr. Pai, learned counsel for the appellant in his attempt to persuade us to give something less than full back wages, attempted to re open the controversy concluded by the order of this Court while granting limited leave that the retrenchment was inevitable in view of the mounting losses and falling production for want OF raw material and persistent power shedding.
It was said that for the limited purpose of arriving at a just decision on the question whether the workmen should be awarded full back wages, we should look into the compelling necessity for m retrenchment of the workmen.
Once leave against relief of reinstatement was rejected, the order of the Labour Court holding that retrenchment was invalid and it was motivated and the relief of reinstatement must follow, has become final.
Under no pretext or guise it could now be re opened.
Before dealing with the contentions in this appeal we must bear in mind the scope of jurisdiction of this Court under Article 136 of the Constitution vis a vis the Awards of the Industrial Tribunals.
Article 136 of the Constitution does not envisage this Court to be a regular Court of appeal but it confers a discretionary power on the Supreme Court to grant special leave to appeal, inter alia, against the Award of any Tribunal in the territory of India.
The scope and ambit of this wide constitutional discretionary power cannot be exhaustively defined.
lt cannot obviously be so construed as to confer a right to a party which he has none under the law.
The Court will entertain a petition for special leave in which a question of general public importance is involved or when the decision would shock the conscience of this Court.
the lndustrial Disputes Act is intended to be a self contained one and it seeks to achieve social justice on the basis of collective bargaining, collaboration and arbitration.
Awards are given on circumstances peculiar to each dispute and the Tribunals are to a large extent free from resrtrictions of technical considerations imposed on courts.
A free and 568 liberal exercise of the power under Article 136 may materially affect the fundamental basis of such decisions, viz., quick solution of such disputes to achieve industrial peace.
Though Article 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where Awards are made in violation of the principles of natural justice causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation and final decision by this Court or discloses such other exceptional or special circumstances which merit consideration of this Court (See Bengal Chemical & Pharmaceutical Works Ltd., Calcutta vs Their Workman) (1) The question in controversy which fairly often is raised in this Court is whether even where reinstatement is found to be an appro priate relief, what should be the guiding considerations for awarding full or partial back wages.
This question is neither new nor raised for the first time.
It crops up every time when the workman questions the validity and legality of termination of his service howsoever brought about, to wit, by dismissal, removal, discharge or retrenchment, and the relief of reinstatement is granted.
As a necessary corollary the question immediately is raised as to whether the workman should be awarded full back wages or some sacrifice is expected of him.
Let us steer clear of one controversy whether where termination of service is found to be invalid, reinstatement as a matter of course should be awarded or compensation would be an adequate relief.
That question does not arise in this.
appeal.
Here the relief of reinstatement has been granted and the award has been implemented and the retrenched workmen have been reinstated in service.
The only limited question is whether the Labour Court in the facts and circumstances of this case was justified in awarding full back wages.
It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service.
The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law.
The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid.
It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived deprived workman of his earnings.
if (1) [1959]] Suppl.
2 SCR 136 at 140.
569 thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer.
Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted.
More so in our system where the law 's proverbial delay has become stupefying.
If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved.
Ordinarily, therefore.
a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness.
That is the normal rule.
Any other view would be a premium on the unwarranted litigating activity of the employer.
If the D employer terminates the service illegally and the termination is motivated as in this case, viz ., to resist the workman 's demand for revision of wages.
the termination may well amount to unfair labour practice.
In such circumstances reinstatement being the normal rule, it should be followed(l with full back wages.
Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect.
By a suitable legislation, to wit, the U.P. , the State has endeavored to secure work to the workmen.
In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom.
On top of it the were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them.
If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages.
When it was held that the termination of services was neither proper nor justified, it would not only show that the workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same.
If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them.
A Division Bench of the Gujarat High Court in Dhari Gram Panchayat vs Safai Kamldar Mandal(1), and a Division Bench of the Allahabad (1) 11 971] I Labour Law Journal 508 570 High Court in Postal Seals Industrial Co operative Society Ltd. vs Labour Court 11, Lucknow & ors.(l), have taken this view and we are of the opinion that the view taken therein is correct.
The view taken by us gets support from the decision of this Court in workman of Calcutta Dock Labour Board & Anr.
Employers in relation to Calcutta Dock Labour Board & ors.(2).
In this case seven workmen had been detained under the Defence of India Rules and one of the disputes was that when they were released and reported for duty, they were not taken in service and the demand was For their reinstatement.
The Tribunal directed reinstatement of five out of seven workmen and this part of the Award was challenged before this Court.
This Court held that the workmen concerned did not have any opportunity of explaining why their services should not be terminated and, therefore, reinstatement was held to be the appropriate relief and Act aside the order of the Tribunal.
It was observed that there was to justification for not awarding full back wages from the day they offered to resume work till their reinstatement.
Almost an identical view was taken in Management of Paniltole Tea Estate vs The Workmen(3).
In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages.
All relevant considerations will enter the verdict.
More or less, it would be a motion addressed to the discretion of the Tribunal.
Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure.
At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances.
But the discretion must be exercised in a judicial and judicious manner.
The reason for exercising discretion must be cogent and convincing and must appear on of the face of.
the record.
When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice? according to law and not humor.
It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharm v.Workfild(4).
It was, however, very strenuously contended that as the appellant company is suffering loss and its carry forward loss as on 31st March 1978 is Rs. 8,12,416.90, in order to see that the industry survives and the workmen continue to get employment, there must be come sacrifice on the part of workmen.
If the normal rule in a case like this is to award full back wages, the burden will be on the appellant employer (l) [1971] I Law Journal, 327.
(2) (3) ; (1) 31 179.
571 to establish circumstances which would permit a departure from the A normal rule.
To substantiate the contention that this is an exceptional case for departing from the normal rule it was stated that loss is mounting up and if the appellant is called upon to pay full back wages in the aggregate amount of Rs. 2,80,0OO/ , it would shake the financial viability of the company and the burden would be unbearable.
Often when some monetary claim by the workmen is being examined, this financial inability of the company consequent upon the demand being granted is voiced.
Now, undoubtedly an industry is a common venture, the participants being the capital and the labour.
Gone arc the days when labour was considered a factor of production.
Article 43A of the Constitution requires the State to take steps to secure the participation of workmen in the management of the undertaking, establishments or other organisations engaged in any industry.
Thus, from being a factor of production the labour has become a partner in industry.
lt is a common venture in the pursuit of desired goal.
Now? if a Sacrifice is necessary in the overall interest of the industry D or a particular undertaking, it would be both unfair and iniquitous to expect only one partner of the industry to make the sacrifice.
Pragmatism compels common sacrifice on the part of both.
The sacrifice must come from both the partners and we need not state the obvious that the labour is a weaker partner who is more often called upon to make the sacrifice.
Sacrifice for the survival of an industrial undertaking cannot be an unilateral action.
It must be a two way traffic.
The management need not have merry time to itself making the workmen the sacrificial goat.
If sacrifice is necessary, those who can afford and have the cushion and the capacity must bear the greater brunt making the shock of sacrifice as less poignant as possible for those who keep body and soul together with utmost difficulty.
F The appellant wants us to give something less than full back wages in this case which the Labour Court has awarded.
There is nothing to show whether the Managing Director has made any sacrifice; whether his salary and perks have been adversely affected; whether the managerial coterie has reduced some expenses on itself.
If there is no such material on record, how do we expect the workmen, the less affording of the weaker segment of the society, to make the sacrifice, because sacrifice on their part is denial of the very means of livelihood.
We have also found that since 1976 77 the appellant is making profit.
A Statement of Account certified by the Chartered Accountants of the company dated 25th July, 1978 shows that the appellant has been making profit since 1976 77.
The unit is, therefore, looking up.
572 One relevant aspect which would assist us in reaching a just con clusion is that after retrenching 43 workmen effective from 1st August 1974, 36 of them were recalled for service on large number of days in 1975 1976 and 1977, the maximum being the case of Jai Hind who was given work for 724 1/4 days, and the minimum being Harsaran s/o Baldev who was given work for 15 days.
An amount of Rs. 74,587.26 was paid to these 36 workmen for the work rendered by them since the date of retrenchment.
Certainly, the appellant would get credit for the amount so paid plus the retrenchment compensation it must have paid.
Even then we were told that the employer will have to pay Rs. 2,80,OOO/ by way of back wages.
We were also told that the appellant had offered to pay by way of settlement 50% of the back wages.
Therefore, the only question is whether we should confirm the Award for full back wages.
Now, undoubtedly the appellant appears to have turned the corner.
The industrial unit is looking up.
It has started making profits.
The workmen have already been reinstated and therefore, they have started earning their wages.
It may, however, be recalled that the appellant has still not cleared its accumulated loss.
Keeping in view all the facts and circumstances of this case it would be appropriate to award 75% of the back wages to the workmen to be paid in two equal instalments.
It may well be that in appropriate cases the Court may, in the spirit of labour and management being partners in the industry, direct scaling down of back wages with some sacrifice on management 's part too.
We were, even here, inclined to saddle the condition that till the loss is totally wiped out the Managing Director and the Directors shall not charge any fee for the services rendered as Director, no dividend shall be paid to equity shareholders, and the Managing Director shall not be paid any overriding commission, if there be any, on the turnover of the company since this will account for the pragmatic approach of common sacrifice in the interest of the industry.
We indicate the implications of Article 43A in this area of law but do not impose it here for want of fuller facts.
The Award shall stand accordingly modified to the effect that the retrenched workmen who are now reinstated shall be paid 75% of the back wages after deducting the amount paid to them as wages when recalled for work since the date of retrenchment and adjustment of the retrenchment compensation towards the amount found due and pay able.
The appellant shall pay the costs of the respondents as directed while granting special leave.
N.V.K. Appeal dismissed.

summary/full:
Awarding full or partial back wages Plinciples for awarding Employee 's financial viability to pay baek wages lf could be a factor for not awarding full back wage,s.
The management (Appellant) retrenched 56 of its worl;tnell alleging nonavailability of raw material to ntilise the fnll installed capacity, power shcdding limiting the working of the unit to 5 days a week and mounting losses.
As a result of negotiations between the parties, the retrenched workmen were taken back in service.
A few days later, however, the workmen demanded revision of wage scales, but the appellant pleaded inability to revise the pay scales in view of the mounting losses.
Thereafter, the employer reternched 43 workmen.
The dispute resulting out of the retrenchment was referred to adjudication under section 4k of the U.P.
The Labour Court held that the real reason for retrenchment was annoyance felt by the management when the employees refused to agree to the terms oil settlement and that it was not for the reasons stated by the employer.
The Labour Court ordered reinstatement of the retrenched workmen with full back wages.
In the Special leave petition the employer questioned the correctness of the Labour Court 's view that the retrenched workmen should be reinstated.
This Court rejected this prayer and limited the special leave to the question of granting back wages to the retrenched workmen ordered to be reinstated.
^ HELD: 1.
Since the emoloyer 's prayer in the special ieave petition that the retrenched workmen should not be reinstated was rejected by this Court it meant that the Labour Court 's view that retrenchment was unjusified was correct.
For the reasons found by the Labour Court retrenchment was motivated and so invalid.
The workmen were entitled to the relief of reinstatement from the date they were sought to be retrenched.
The order of the Labour Court on the question of reinstatement became final.
[567 C E] 2.
Article 136 of the Constitution does not envisage this Court to be a regular Court of Appeal but it confers a discretionary power on it to grant special leave to appeal, inter Ala, against the Award of any Tribunal.
The scope and ambit of this vide constitutional discretionary power cannot be 564 exhaustively defined.
It cannot be so construed as to confer a right to a party when he has none under the law.
The Court will entertain a petition for special leave in which a question of general public importance is involved or when the decisions would shock the conscience of this Court.
The is intended to be a self contained code and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration.
Awards are given on circumstances peculiar to each dispute and the Tribunals are to a large extent free from restrictions of technical consider rations imposed on Courts.
A free and liberal exercise of the power under Article 136 may materially affect the fundamental basis of such decisions, viz., quick solution of such disputes to achieve industrial peace.
[567 F 568 A] Bengal Chemical & Pharmaceutical Works Ltd, Calcutta vs Their Workmen [1959] Suppl.
2 SCR 136 at 140 referred to.
In the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service.
The common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law.
The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid.
[568 G H] 3.
Where termination of service is questioned as being invalid or illegal and the workman has to go through the litigation, his capacity to sustain himself throughout the protracted litigation is itself so precarious that he may not survive to see the day when relief is granted.
If after such prolonged litigation the workman is not paid his back wages it would amount to a penalty for no fault of his.
The workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness.
If the termination is illegal or motivated it may amount to unfair labour practice.
Tn such circumstances reinstatement being the normal rule it should be done with full back wages.
[569 B D] Workmen of Calcutta Dock Labour Board & Anr.
vs Employers in relation to Calcutta Dock Labour Board & ors. , referred to.
Management of Panitole Tea Estate vs The Workmen referred to.
Dhari Gram Panchayat vs Safai Kamdar Mandal approved.
Postal Seals Industrial Co operative Society Ltd. vs Labour Court ll Luck now & Ors.
approved.
For awarding relief of back wages all relevant considerations will enter The verdict of the Tribunal.
Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure.
The Tribunal will then exercise its discretion But the discretion must be exercised in a judicial and judicious manner.
The reason for exercising discre tion must be cogent and convincing and must appear on the face of the record.
It should not be arbitrary, vague and fanciful but legal and regular.
[570 GE] Susannah Sharn vs Wakefield at 179 referred to.
565 on the question of the employer 's financial viability to pay back wages view of mounting losses the Supreme Court held.
Industry is a common venture, the participants being capital and labour Article 43A. requires the State to take steps to secure participation of workman in the management.
From being a factor of production labour has become a partner in industry.
It is a common venture in pursuit of a desired goal.
If sacrifice is necessary in the overall interest of the industry it would be unfair to expect only labour to make the sacrifice.
It should be common sacrifice.
If sacrifice is necessary those who can afford and have the capacity must bear the brunt.
[571 A F] (b) In the present case there is nothing to show that the Managing Director has made any sacrifice.
In the absence such information the weaker section of society cannot be expected to make a greater sacrifice than the directors In an appropriate case it would be appropriate to direct that till the loss is wiped out the managing directors shall not charge any fees for the services rendered and no dividend shall be paid.
[571 G. 572 E F] (c) As the appellant has turned the corner, and the industrial unit is looking up and started making profits, the retrenched workmen having already been reinstated and started earing their wages it would be appropriate to award 75% of the backs wages to the workmen to be paid in two equal instalments.
[572 D]