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8. The question next arise as to whether the provision, thus understood, violates the prohibition under article 14 of the Constitution. The first part of the article, which appears to have been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India and thus enshrines what American Judges regard as the "basic principle of republicanism" [cf. Ward v. Flood (17 Am. Rep. 405)]. The second part which is a corollary of the firsts and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such person in the enjoyment of their rights and liberties without discrimination or favoritism, or as an American Judge put it "it is a pledge of the protection of equal laws" [Yick Wo v. Hopkins (118 U.S. 356, 369)], that is, laws that operate alike on all persons under like circumstances. And as the prohibition under the article is directed against the State, which is defined in article 12 as including not only the legislatures but also the Governments in the country, article 14 secures all person within the territories of India against arbitrary laws as well as arbitrary application of laws. This is further made clear by defining "law" in article 13 (which renders void any law which takes away or abridges the rights conferred by Part III) as including, among other things, any "order" or "notification", so that even executive orders or notifications must not infringe article 14. This trilogy of articles thus ensures non-discrimination in State action both in the legislative and the administrative spheres in the democratic republic of India. This, however, cannot mean that all law must be general in character and universal in application. As pointed out in Chiranjit Lal's case ([1950] S.C.R. 869), and in numerous American decisions dealing with the equal protection clause of the 14th Amendment, the State in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must posses for that purpose large powers of distinguishing and classifying person or things to be subjected to such laws. But classification necessarily implies discrimination between persons classified and those who are not members of that class."It is the essence of a classification" said Mr. Justice Brewer in Atchison, Topeka & Santa Fe R. Co. v. Matthews (174 U.S. 96, 106), "that upon the class are case duties and burdens different from those resting upon the general public. Indeed the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines this matter of constitutionality". Commenting on this observation in hi dissenting opinion in Connolly v. Union Sewer Pipe Co. (184 U.S. 540, 566, 567, 568), (which later prevailed in Tigner v. Texas (310 U.S. 141)), Mr. Justice McKenna posed a problem and proceeded to answer it."It seems like a contradiction to say that a law having equality of operating may yet give equality of protection. Viewed rightly, however, the contradiction disappears..... Government is not a simple thing. It encounters and must deal with the problems which come from persons in an infinite variety of relations. Classification is the recognition of those relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment.... Classification based on those relations need not be constituted by an exact or scientific exclusion or inclusion of person or things. Therefore it has been repeatedly declared that classification is justified if it is not palpably arbitrary.

Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or of cases. As pointed out by Chakravarti J. the necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In the words of Das Gupta J. it is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is no classification at all in the real sense of the term as it is not based on any characteristics which are peculiar to persons or to cases which are to be subject to the special procedure prescribed by the Act. The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is not a mere arbitrary selection. Persons concerned in offences or cases needing so-called speedier trial are entitled to inquire "Why are they being made the subject of a law which has short-circuited the normal procedure of trial; why has it grouped them in that category and why has the law deprived them of the protection and safeguards which are allowed in the case of accused tried under the procedure mentioned in the Criminal Procedure Code; what makes the legislature or the executive to think that their cases need speedier trial than those of others like them?" The only answer, that so far as I am able to see, the Act gives to these inquiries is that they are being made the subject of this special treatment because they need it in the opinion of the provincial government; in other words, because such is the choice of their prosecutor. This answer neither so and rational nor reasonable. The only answer for withholding from such person the protection of article 14 that could reasonably be given to these inquiries would be that "Of all other accused persons they are a class by themselves and there is a reasonable difference between them and those other persons who may have committed similar offences." They could be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of Criminal Procedure has by the process of classification prescribed different modes of procedure for trial of different offences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid down. The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offenses by which measure these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave the case of the other person in the same circumstance to be tried by the procedure laid down in the Criminal Procedure Code. The State government it authorized, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be tried in the ordinary way. It is open under this Act for the provincial government to direct that a case of dacoity with firearms and accompanied by murder, where the persons killed are Europeans, be tried by the Special Court, while exactly similar cases where the persons killed are Indians may be tried under the procedure of the Code.

83. The question whether there is any proper classification where no standard is set up by the enactment to control executive action has arisen for consideration before the American courts and has been differently answered. Willis says at page 586 :-

"Is it proper classification to put in one class those who get the consent of a board or of an official and into another class those who do not, where no standard is set up to control the action of the board or official? Some cases answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred."

106. Tested in the light of these considerations. I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad. When the forth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to may mind is the most important of all. We find men accused of heinous crimes called upon answer for their lives and liberties. We find picked out from their fellows, and however the new procedure may given them a few crumb of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large. It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic, in the condition which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.