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(Italics mine.)

9. Thus, the general language of article 14, as of its American counterpart, has been greatly qualified by the recognition of the State's regulative power to make laws operating differently on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given effect to as a safeguard against arbitrary State action. It follows that in adjudging a given laws as discriminatory and unconstitutional two aspects have to be considered. First, it has to be seen whether it observes equality between all the persons on whom it is to operate. An affirmative finding on the point may not, however, be decisive of the issue. If the impugned legislation is a special law applicable only to a certain class of persons, the court must further enquire whether the classification is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the reasonableness of classification comes into question only in those cases where special legislation affecting a class of person is challenged as discriminatory. But there are other types of legislation such as for instances, the Land Acquisition Act, which do not rest on classification, and no question of reasonable classification could fairly arise in respect of such enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory.

10. It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination. Classification condemned as discriminatory have been subsequently upheld as being within the powers of the legislature. In Tigner v. Texas (310 U.S. 141), the majority view in Connolly's case (184 U.S. 540), holding that an Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufactures but declared them to be civil wrongs if done by farmers and stockmen, was "manifestly a denial of the equal protection of the laws") was considered to be no longer "controlling". While in Gulf, Colorado & Santa Fe R. Co. v. Ellis (165 U.S. 666), a Texas statute imposing an attorney's fee in addition to costs upon railway corporations which unsuccessfully defended actions for damages for stock killed or injured by their train was struck down as discriminatory because such corporations could not recover any such fee if their defence was successful, a similar provision in a Kansas statute in respect of an action against railroad companies for damages by fire caused by operating the rail- road was upheld as not discriminatory in Atchison, Topeka & Santa Fe R. Co v. Matthews (174 U.S. 96), the earlier case being distinguished on some ground which Harlon J. in his dissenting opinion confessed he was not "astute enough to perceive". And the latest decision in Kotch v. Pilot Comm'rs (330 U.S. 552), marks, perhaps, the farthest swing of the pendulum. A Louisiana pilotage law authorised the appointment of State pilots only upon certification by a State Board of river pilot commissioners who were themselves State Pilots. Among the prescribed qualifications was apprenticeship under a State pilot for a certain period. By admitting only their relatives and friends to apprenticeship, the members of the board made it impossible, with occasional exceptions, for others to be appointed as State pilots. Upholding the constitutionality of the law as well as the manner in which it was administered, the Court said: "The constitutional command for a State to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the 14th Amendment. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be."

16. And Holmes J. added that, although it did not appear from the statute that the action of the Board of Health was intended to be subject to judicial revision as to its reasonableness, he agreed that it was not hit at by the 14th Amendment.

17. In the light of the foregoing discussion it seems to me difficult to hold that section 5 (1) in whole or in part is discriminatory. It does not, either in terms or by necessary implication, discriminate as between persons or classes of persons; nor does it purport to deny to any one equality before the law or the equal protection of the laws. Indeed, it does not by its own force make the special procedure provided in the Act applicable to the trial of any offence or classes of offences or classes of cases; for, it is the State Government's notification under the section that attracts the application of the procedure. Nor is that procedure, as I have endeavored to show, calculated to impair the chances of a fair trial of the cases to which it may be made applicable, and no discriminatory intent or design is discernible on its face, unless every departure from the normal procedure is to be regarded as involving a hostile discrimination. I have already held, as a matter of construction, that section 5 (1) vests a discretion in the State Government to refer to a special court for trial such offences or classes of offences or cases or classes of cases as may, in its opinion require a speedier trial. Such discretion the State Government is expected to exercise honestly and reasonably, and the mere fact that it is not made subject to judicial review cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act or, as Harries C.J. put it, 'whether the duration of a case is likely to be long or not." In the face of all these considerations, it seems to me difficult to condemn section 5 (1) as violative of article 14. If the discretion given to the State Government should be exercised improperly or arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the constitutionality of the law. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. As observed by Kania C.J. in Dr. Khare's case ([1950] S.C.R. 519, 526). "It is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of power given by law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension." On the contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers, and that the State Government in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features and circumstances which might unduly protract its trial under the ordinary procedure and mark it off for speedier that under the Act.

20. Even from the point of view of reasonable classification, I can see no reason why the validity of the Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislate in classifying persons and things to be brought under the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion. I cannot share the view of Das Gupta J. that the expediency of speedier trial is "too vague and indefinite" to be the basis of a "well defined" classification. Legislative judgment in such matters should not be canvassed by courts applying doctrinaire "definite objective tests". The Court should not insist in such cases on what Holmes J. called "delusive exactness". (Truax v. Corrigan, supra). All that the court is expected to see, in dealing with equal protection claims, is whether the law impugned is "palpably discriminatory", and, in considering such a question great weight ought to be attached to the fact that a majority of the elected representative of the people who made the law did not think so, though that is not, of course, conclusive. They alone know the local conditions and circumstances which demanded the enactment of such a law, and it must be remembered that "legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts" (per Holmes J. in Missouri K. & T. R. Co. v. May). After all, what the Legislature of West Bengal has sought to do by passing this Act is to regulate criminal trials within its territories by instituting a system of special courts with a shortened and simplified procedure, without impairing the requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of cases as, in the opinion of the executive government, require speedier disposal. I do not think that article 14 denies to the State Legislature such regulative power. (cf. Missouri v. Lewis (101 U.S. 22)). To sustain a law as not being discriminatory is not, however, to leave the party affected by a discriminatory application of the law without a remedy, for, as we have seen, state action on the administrative side can also be challenged as a denial of equal protection and unconstitutional.