Calcutta High Court
Nathuni Lal Gupta And Ors. vs The State And Ors. on 19 December, 1963
Equivalent citations: 1964CRILJ662, AIR 1964 CALCUTTA 279
Author: G.K. Mitter
Bench: G.K. Mitter
JUDGMENT Witter, J.
1. This is an application under Article 228 of the Constitution of India for determination of several constitutional questions raised in paragraph 10 of the petition.
2. The petitioners are 158 in number against whom proceedings were started under Rule 41(5) read with Rule 41(1)(a) Rule 35(3) and Rule 36(4) of the Defence of India Rules, 1962. They were all workmen of Shri Luxmi Flour Wills Ltd-, 243, Upper Chitpore Road, Calcutta. me complaint against them was that they had squatted outside the main gate and rear entrance of the said Mill in order to prevent anybody from going in or coming out of the said Mill premises and had refused to allow others to the 27,000 mis of finished wheat products for dispatch by trucks and rail with the result that there was every chance of the said stock getting rotten. The complaint was taken dip by a Presidency Magistrate of Calcutta who overruled the preliminary objections raised before him on behalf of tile present petitioners.
3. In the petition filed in this Court the points for umlauted for determination are:
(1) Whether wheat or wheat products are essential commodity as defined in sub-r. (5) of Rule 35 of the Defence of India Rules, 1962, and if so, whether such a detention is contrary to the provision of an. 369 and item list 3, Schedule 7 of the constitution of India, not withstand Ing the tact that there is no notified order by the Central government to the effect."
(2) "whether the prejudicial act referred to in Rule 41 (1)(a) of the Defence of India Rules, 1962, is in nation of Article 14 as there is no reasonable basis for such castigation.
(3) Whether the prejudicial at as referred to m Rule 41 (1)(a) of the Defence of India Rules, 1962, sutters from the vice of delegated legislation inasmuch as it arms the executive authority or any person to avail of the machinery under the Rules and such action is a usurpation of essential legislative functions.
4. The petitioners contend that wheat and wheat products are not essential commodities as they are nor foodstuffs within the meaning of Clause (b) of Item 33, List i of the 7th Schedule to the Constitution, that the definition of essential commodity in sub-r. (5) of Rule 35 of the Detence of India Rules, 1962, is repugnant to the said entry and is also Inconsistent with the provisions of Essential corn-modifies Act, 1955, Section 2(a)(xi), that the prejudicial act as defined in Rule 41 U)(a) of the Constitution has no nexus with prejudicial act as stated in Rule 35(6) of the Defence of India Rules, that the prejudicial act as referred to in Rule 41 (1)(a) of the Defence of India Rules suffers from vice of delegated legislation and that the Magistrate erreo In holding that peace time provisions of law had been abrogated Justifying the taking of drastic power under the Defence of India Act and the Defence of Inaia Rules in view of the decision in Emperor v. Benowarilal Sarma .
5. Article 352 of the Constitution empowers the President if he is satisfied that a grave emergency exists fireaitening the security of India or arty part of its territory to make a Proclamation to that effect. Such a proclamation ceases to have effect at the expiration of two months from the date of Its making unless it has it the melanomas been approved by both Houses of Parliament. There was no challenge before us as to the issue of the Proclamation of emergency in 1962. Under Article 353 while a proclamation of emergency is in operation the power of Parliament to make laws with respect to any matter includes power to make laws conferring powers and imposing duties, or authorising the conferring of powers end the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that It is one which is not enumerated in the Union list. It will be noted from the above that during the operation of Proclamation of emergency Parliament can exercise powers and impose duties on authorities which it does not exercise, in times when no emergency is existent. Articles 358 and 359 show that the rights of citizens under the Constitution may be curtailed when a proclamation of emergency is in operation. Article 23U (1) provides that during such a period Parliament was me power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in List II of the Seventh Schedule. By me combined operation of these Articles of the constitution Parliament has the right to make laws with respect to an the three lists In the Seventh Schedule to the Constitution during a period of emergency. This power of Parliament is not confined to the making of laws alone but memoes the powers to confer jurisdiction and impose duties win upon the Union of India and its authorities as respects any law made during the operation of proclamation of emergency. It Is amply clear from this that Parliament acquires additional jurisdiction to make laws and to impose duties or the enforcement of such laws which it does not have when no such proclamation of emergency Is in operation.
6. It was argued before us on the strength of certain American authorities that emergency does not create power. Reference was made in this connection to the observation of Hughes, C. J. in the case of Home Bunamg and Loan Association v. Blaisdell (1934) 78 Law Ed. p. 415 at p. 425 that Emergency does not create power. Emergency does not increase granted power or remove or dimmish the restrictions Imposed upon power granted or served While emergency does not create power, emergency may furnish the occasion for the exercise of the power Thus the War power of the federal Government is not created by the emergency of war but It is a power given' to meet the emergency.
Our attention was also drawn to certain passages In the judgment in the case of Youngstown sheet and loupe Co. v. Charles Sawyer (1952) 96 Law EO. p. hot It is not necessary to contrast the relative provisions of the Indian Constitution as against those of the American Constitution. It Is enough to point out that under our Constitution the proclamation of emergency by the presment gives Parliament the right to make laws which it would not have during a period when there Is no emergency.
7. The preamble to the Defence of India Act shows that Its object was to provide for special measures to ensure the public safety and interest, the Defence of India and Civil Defence and for trial of certain attendees and for matters connected therewith. It is at once apparent from the preamble that in order to maintain internal discipline and take effective steps to meet external egression provision may have to be made to cover and control nearly almost all the activities of citizens. Of necessity such matters are bound to include the production and distribution of commodities essential to human life, publication of news and information, ensuring the safety of all methods of transport and communication, the apprehension and detention in custody of persons suspected of doing anytmng to the prejudice of the Defence of India, and indeed tne aoing of any act which would be prejudicial to the safety of the State or maintenance of supplies and services essential to the life of the community. Parliament therefore felt that powers should be given to the Central Government to make elaborate rules as might be considered necessary or expedient for securing the Defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of the community. Wide and comprehensive power to make rules was therefore given by Section 3U) of the Act to the central Government. Parliament was however not content to give the central Government such sweeping powers to make rules which would have the force of law without giving direction in this regard. Sub-section (2) of Section 3 of the Act expressly provides for the making of rules with respect to no less than fifty-seven matters. Some of these are again sub-divided under several heads. It is clear from this that the delegation of legislative power though very wide was tot un-canalised. The question whether in conferring such extensive powers on the Central Government to make rules the legislature had abdicated Its essentially legislative functions in favour of the Central Government came up for consideration before the Supreme Court of India in; a number of appeals preferred from different States the first being that or Makhan Singh TarsikKa v. State of Punjab AIR 1952 SC 332. The question raised specifically in those cases was about the validity of any rule Under Section 3(2)(15) V) of the Defence of India Act, 1962 and Rule 30(1)(b) of the Defence of India Rules. The Supreme Court referred to the pronouncements made in In re Article 143, Constitution of India and Delhi Laws Act (1912) etc.. (AIR 1951 SC 478) the case of Harishankar Bagia v. State of Madhya Pradesh and Bhatnagars and Co. Ltd. v. Union of India (S) and observed:
One has, merely to read SC 3(1) and the detaiieo provisions contained In the several clauses of Section 6 to be satisfied that the attack against the validity of we said section on the ground of excessive delegation is patently unsustainable. Not only Is the legislative policy broadly Indicated in the preamble to the Act, but the relevant provisions of the impugned section itself give such derailed and specific guidance to the rule-making authority that it would be Idle to contend that the Act has deiegateo essentially legislative function to the rule making autnority.
In my opinion, the above observations apply with equai force to the facts of the case before us. Under Section 3(2)(23) the Central Government is given the power to centra trade or industry for the purpose of regulating or increasing, the supply of articles or things of any description wnatso-ever which may be used In connection with the conduct military operation or civil defence or for maintaining supplies and services essental to the life of the community. Under the power given by this clause it would certainly be open to the Central Government to define what are the trades or industries and what are the articles or tmngu essential to the life of the community the supplies whereof must be maintained. In order to fulfil this object the Central Government had to make rules and define inter and commodities which were essential for the existence of tne community. By Rule 35 Clause 5 "essential commodity" was defined to mean food, water, fuel, light, power or any other thing notified by the Central Government in this behalf as essential for the existence of the community.
No one can gainsay that the country as a whole was interested in1 maintaining supplies of the above essential commodities and that Central Government was under a duty to ensure that anybody who obstructed We supplies of tnese essential commodities was suitably dealt with. To acnieve this object the Central unvernment terminate Rule 41. whereby alt citizens were prohibited from ooing any "prejudicial act" without lawful authority or excuse. Now prejudicial acts may be of vastly different kinds and an attempt was made by Rule 35 (6) to indicate what the centra; Government considered to be prejudicial acts within the meaning of the Defence of India Rules, under Rule 35 (6) prejudicial act means, inter alla.
an act intended to Impede, delay or restrict we means of transport or locomotion, any work necessary for the efficient conduct of military operations, the production, handling or transport of any munitions or the supply or ens-tribution of any essential commodity.
No one will deny that the supply or distribution of the essential commodities already mentioned must be ensured avert' when there is no threat of external aggression. But when such a threat exists the supply or distribution of commodities like food, fuel, water, light or power assumes national Importance. I find myself unable to appreciate the argument that there was no nexus between the prejuaiciau act as mentioned in Rule 41 (1)(a) and the acts oesenneo to be so in Rule 35 (6). Rule 41 (1) only lays down that) nobody Is to do any prejudicial act or obtain, collect, record etc., any Information likely to assist the enemy' or make, print, publish etc. any prejudicial report without lawful authority or excuse. Rule 35(6) is an attempt to define prejudicial acts which may be committed. There is no nexus between the acts described In Clauses (a) to (s) or sub-r. 6 of Rule 35 excepting that they are all prejudicial to the objects with which the Defence of India Act was enacted.
8. Let us now examine the contention of the applicants that even if the Defence of India Rules, and, in particular, Rules 35 and 41 were valid, wheat and wheat products were not food' and therefore impeding the supply of tnesa commodities could not be described as a prejudicial act. The reasoning is somewhat difficult to follow but the argument speaking broadly was that wheat and wheat products cannot t taken and consumed as aney are and therefore they cannot be described as food aitnougrt they mignt fall within the nomenclature of food stutts. in this connection our attention was drawn to more than ono decision of the Supreme Court which only illustrate that the line of demarcation' between food and tood stutts is very thin. In State of Bombay v. Virkumar Guiaocnand snan AIR 1962 SC 33S, the question before the Supreme court was whether turmeric was a food stuff within the meaning of Clause (3) of the Spices (Forward Contracts Regulation; Order, 1944 read with Section 2 (a) of the Essential supplies (Temporary Powers) Act, 1946. In his Judgment, Bose, J. referred to the Oxford English Dictionary according to which 'food stuffs1 means "that which Is taken Info the system to maintain life and growth and to supply waste of tissue" and to Webster's International Dictionary for the meaning of food: as nutritive material absorbed or taken Into the body of . an organism which serves for purposes of growth, work or I repair and for the maintenance of the vital process.
It will be noted that there Is practically no distinction between the meanings of the two words and Bose, J- Observed that "foot-stuffs" had no special meaning of its own. me learned Judge referred to the case of James v. Jones (1894> 1 Q. B. 304, wherein it was held that baking powder was an article of food within the meaning of the Engnsn sale of Food and Drugs Act, 1875, and to Hinde v. Aiimona (1918) 87 L. J. K. B. 893 where the question was whetner tea was an article of food within the meaning of an order designed to prohibit the hoarding of food, namely, the Food Hoarding Order of 1917. In the latter case, tea was heia not to be an article of food. Bose, J. also referred to the case of Salnsbury v. Saunders (1919) 88 LJ K. B..441 where Darling and Avory, JJ. who were parties to triad earlier decision in (1918) 87 U KB 893 took different views. Avory, J. held tea to be an article of food for the purpose of the Defence of the Realm Regulations while Darling, i, adhered to his earlier view., Salter, j. was of the same opinion as Avory, J.
9. We are not concerned with the actual decision in these cases which only go to show that a thing may be a food or food stuff even if not directly consumed and has no nutritive value but is only used for culinary purposes in the preparation of food. So far as wheat and wheat products are concerned, in my opinion, there is no room for doubt that they are food even if they are not consumed as they are but have to be cooked or have to undergo some mechanical process before the same are ready for consumption. So far as wheat is concerned, it may have to be ground into flour or attic before it can be cooked and made ready for the table. But so far as wheat products line sultana, cornflakes, etc. are concerned, no such process is necessary.
10. In this connection it is necessary to note that the complaint In this case only mentions "wheat products-although In the petition the applicants describe the articles stored in the premises of the mills as wheat and wheat products. In my opinion it makes no difference whetner the articles which were awaiting transporation in the mill premises were wheat or whether they were wheat products.
11. Reference was made to the case to Tlkaram v. State of U.P. (S) where legislation with regard to control and production of sugar and sugarcane came up for consideration. It was argued that according to this case no law could be made by the legislature of a State or of the Union "by taking sugar and sugarcane within the concurrent list of the seventh Schedule. In my opinion the discussion in that case does not help us-In coming to a decision on the facts of the present case. Here we are only concerned to find out whether wheat and wheat products are both food. if they are food they win come within the definition of essential commooity in Rule 35 (5) of the Defence of India Rules.
12. The next point argued was that the definition or essential commodity in the Defence of India Rules was in conflict with that given in Section 2(a) of the Essential Commodities Act, 1955. Under Section 2(a), Clause (v) of the-Essential Commodities Act, essential commodity means "tooo stuffs Including edible oil-seeds and oils". It was arguea that food stuff was different from food and on the strengtn of the cases cited above It was contended that the definition of essential commodity in the Essentrai commiomes Act, 1955 differed from that in the Defence of India Rules. It Is true that the definition in the Essential Commodities Act is more comprehensive than that In Rule 35(5) of the j Defence of India Rules but both definitions enumerated certain things or articles and have scope for addition to tne list of other articles notified In that behalf by the Central Government, it Is true that a thing like Paper or newsprint included within the definition of the Essential Commodities Act is not expressly mentoned in the definition given In the Defence of India Rules, but these articles can become essential commodities within the meaning of the expression j; used1 in the Defence of India Rules by a simple Government notification and I do not see why the slight difference in the definition of Essential Commodities in the Essential commodities Act from that given in the Defence or India Rules makes one repugnant to the other.
13. A somewhat involved argument was put up with regard to the unknots rtutionaiity of the provision for the inclusion of food or food stuffs like wheat am) wheat products within the definition' of essential commodity based on the third amendment of the Constitution. Reference was made to item 33 in list III of the seventh scneduie as it stood before the third) amendment of the Constitution by which parliament was empowered to legislate with regara to.
trade and commerce In, and the production, supply and distribution of the products of industries where the control of such Industries by the Union is declared by Karnameni by law to be expedient in the public interest.
Reading this side by side with item 52 in list of the seventh schedule under which Parliament was empowered to legislate with regard to "industries the control of which by the Union is declared by law to be expedient in the public interest", it was contended that item 33 of the list in only enabled Parliament to legislate with regard to the production, supply and distribution of the products of industries which came within the ambit of item1 52 of list l. it was argued that but for Article 369 of the constitution Parliament could not have legislated with regard to trade gnu commerce within a state in and the production, supply and distribution of articles like cotton and woolens textiles, fool stuffs, coal, iron, steel etc., for a period of five years from January, 1950. As the period of five years had expired legislation with regard to trade and commerce in snp the production supply and distribution of articles like cottow and woollen textiles, food, stuffs etc. would be unconsc- State of Guabat v. V. L. Vakhabu (V. B. Baju J.) 1964 (1) Ori. L. J. tutlonal unless the control of the industry was declared Dy parliament to be. expedient in the public interest under item 52 of list 1 of the seventh schedule. I find myself unable to appreciate this argument in view of the third amendment of the Constitution which gives Parliament express power to legislate with regard to trade and; commerce in and the production, supply and distribution of not only the products of any industry the control of which by the union is discarded by Parliament by law to be expedient in the public inters rest but also with regard to other articles like food stuns, cattle fodder, raw cotton, jute etc. Whitener may nave ften town position before the third amendment of the constitution the pre-condition, if any, in the way of exercise of legislative power with regard to trade and commerce in the production, supply and distribution of food stuns toy parliament has disappeared after the said amenamein. It does not therefore matter wnether the control of vinous-tries engaged in manufacturing wheat products is declared Dy Parliament to be expedient in the public interest or not the production, distribution and supply of wheat and wheat products would fall within Clause (b) of item 33 list ill or the seventh schedule and the validity of the Defence of Inda Rules and specially Rule 35 (5) cannot be questioned as unconstitutional.
14. The questions raised in paragraph 10 of the petition are therefore answered as follows:
(a) Wheat and wheat products are essential oommoai-1 ties as defined in sub-r. (5) of Rule 35 of the Defence or India Rules. Such definition is not contrary to any amice et the Constitution of India.
(b) This question was not pressed and need not ca enswered.
(c) The definition of prejudicial act In Rule 41 (1) W I of the Defence of India Rules does not suffer from the Vice of delegated legislation.
With these answers, the case will be sent back to the learned Magistrate for disposal according to taw.
15. Certificate under Article 132(1) of the Constitution prayed for verbally is refused.
16. Let a certified copy of this judgment be given So the petitioners on the usual terms on or before January 3, 1964.
Bose, C.J.
17. I agree.