P L D 1966 (W (PLP)

9. In order to appreciate the arguments raised by the learned counsel for the petitioner, it is necessary to understand clearly as to what exactly is meant by what is popularly known as the `equality clause' in most written Constitutions of the world. There is in existence a large body of case law on this question, particularly in the United States of America, but we consider that for our present purpose it would suffice to refer to only a few decided cases from the superior Courts of our own country, and a neighbouring country.

10. In Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan, etc. (P L D 1957 S C (Pak.) 9), it was observed as under:‑

"Whatever else the expression `equal protection of law' .may mean, it certainly does not mean equality of operation of Legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the enjoyment of life, liberty and property . . . . . . . no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the `equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case . . . . . . . some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another genera lisation more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the Legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld‑,unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant considerations, such as differences in race, colour or religion will certainly be rejected by the Courts. Applying these tests to the present case; it cannot but be held that if in consequence of abolishing the system of private rents for agricultural land, it also became necessary to make some provision for the outgoing landlords, the classification of the landlords on the basis of their net incomes at the time of their expropriating was a necessary and not an unreasonable classification"

11. Again in another case reported in the same year, namely Waris Meah v. The State and another (P L D 1957 S C (Pak.) 157), their Lordships observed that: "The Act namely, Foreign Exchange Regulation (Amendment) Act confers discretion of a very wide character upon stated authorities, to act in relation to subject falling within the same class in three different modes varying greatly in severity. By furnishing no guidance whatsoever in regard to the exercise of this discretion, the Act on the one hand, leaves the subject, falling within its provisions, at the mercy of the arbitrary will of such authority, and on the other, prevents him from invoking his fundamental right to equality of treatment under the constitution. The scope of the unguided discretion was too great to permit of application of the principle that equality was not infringed by the mere conferment of unguided power but only, by its arbitrary exercise. For in the discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial view point, arbitrary to a greater or less degree. The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5 (1) of the Constitution."

12. While dealing with the Punjab Control of Goondas Act, a Division Bench, of this Court observed in Bazal Ahmad Ayyubi v. The West Pakistan Province (P L D 1957 Lah. 388) that‑

"The Act does not fall within the mischief of Article 5 of the Constitution. Differentiation between classes of persons on the basis of a rational classification is immune from attack on this ground. The equality clause in the Constitution does not prohibit different laws for those differently circumstanced, provided a rational standard is laid down to guide the dis cretion of the relevant authority to choose the appropriate law. Only irrational or arbitrary discrimination, such as, would amount to `legislative depotism' would offend against Article

5. It is only persons who behave in one or more of the ways specified in the Act that can be proceeded against under its provision and they are susceptible of a reasonable classifica tion. The orders that can be passed under the Act are clearly designed to effectuate the declared objects of the enactment. The Act is not ex facie discriminatory but if in its actual working, discrimination is exercised against an individual, there may be cause of action for appropriate relief. The Act as such cannot be assailed as bad."

13. The next case to which reference may be made is Zain Noorani v. Secretary of the National Assembly of Pakistan (P L D 1957 Kar. 1). While discussing Article 5 of the 1956 Constitution, the majority of the, learned Judges observed that while, reasonable classification was permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.

14. Lari, J. who delivered a separate judgment, elaborated the matter by saying that Article 5 means that‑

"All actually, situated similarly will be treated alike. In other words the purpose of this Article is to rest the rights and obligations of all persons upon the same rule under similar circumstances. The Article cannot prohibit classifica tion of citizens provided the classification is based on a difference which is pertinent and real. The equality clause requires merely that the classification shall be reasonable. We call that action reasonable which an informed, intelligent, just‑minded civilised man could rationally favour. In passing upon legislation assailed under the equality clause we have declared that the classification must rest upon a difference which is real and distinguished from one which is seeming, specious or fanciful, as that all actually situated similarly will be treated alike; that the object of the classifica tion must be the accomplishment of a purpose of the promotion of a policy, which is within the permissible functions of the State and that the difference must bear a relation to the object of the legislation which is substantial, as distinguished from one which is speculative, remote or negligible."

15. The question again came up for detailed consideration before a Full Bench of this Court in Malik Muhammad Usman v. The State and another (P L D 1965 Lah. 229) in relation to the validity of the Frontier Crimes Regulation vis‑a‑vis the newly enforced fundamental rights. The conclusion reached by the Full Bench was that‑

"Sections 8 and 11 of the Regulation providing for reference of proceedings to a Jirga offend against Fundamental Right No. 15, inasmuch as the Deputy Commissioner and the Commissioner are given an uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatory procedure, such discretion being more over not governed by any settled principle." The learned Judges further went on to hold that these sections are also repugnant to Fundamental Right No. 1, but that discussion is not relevant in the present context.

16. Some cases from the Indian jurisdiction were also cited at the Bar and it will be useful to refer to them as well at this stage. In Charanjit Lal Chowdhury v. The Union of India and others (AIR 1951 SC41), it was observed by the majority of the learned Judges that‑- "A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it. Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reason able and just relation to the things in respect of which it proposed." In the same judgment, Das, J. observed' that‑ "If there is a classification, the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the Legislature is the best judge of the needs of the particular classes and to estimate the 'degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the statute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons yet the law hits only the particular individual or class it is nothing but an attempt to arbitrarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the Legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him."

17. The Supreme Court of India again adverted to this question in The State of West Bengal v. Anwar Ali Sarkar and another (AIR 1952 S C75) and while dealing with .the validity of the West Bengal Special Courts Act (X of 1950), the majority of the learned Judges observed that‑

"The impugned Act has completely ignored the principle of classification followed in the Criminal P. C. and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root‑cause of the discrimina tion which may result by the application of the Act. 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 cases. The necessity of a speedy trial is too vague, uncertain and elusive criterion to form the basis of a valid and reasonable classification."

18. In Kathi Raning Bawat v. State of Saurashtra (AIR 1962 S C 123), the case just cited was distinguished and the majority of the Judges held that the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, was not unconstitutional and that section 11 thereof in so far as it authorised the State Government to direct offences or classes of offences or classes of cases to be tried by the Special Court did not offend against the equal protection clause of the Constitution of India, Patanjali Sastri, C. J. observed that‑ "The impugned Ordinance having been passed to combat the increasing tempo of certain types of regional crime, the two‑fold classification on the lines of type and territory adopted in the impugned Ordinance, read with the notification issued thereunder, is reasonable and valid, and the degree of disparity of treatment involved is in no way in excess of what the situation demanded."

19. In the same year in another reported case, namely, Lachmandas Kewalram and another v. State of Bombay (AIR 1952 S C 235), the Supreme Court of India was again called upon to consider the question of classification adopted under section 12 of Bombay Public Security Measures' Act (IV of 1947), in relation to Article 14 of the Indian Constitution. The majority of the learned Judges expressed the view that‑-- "while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which dis tinguishes persons or things that are grouped together from others who are left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act, what is necessary is that there must be a nexus between the basis of classification and the object of the Act."

20. The learned Judge then proceeded to say that‑

"Although the first part of section 12 of the Bombay Act may indicate and imply a process of classification, the section, in so far as it authorises the Government to direct particular `cases' to be tried by the Special Court, does not purport to proceed upon the basis of any classification at all, Further, the supposed basis of the alleged classification, namely, the fact of reference to the Special Court before the Constitution came into effect has no reasonable relation to the objects sought to be achieves( by the Act. If the consideration of the security of the State or the maintenance of public order requires the application of the special procedure, there is no obvious reason why it should be applied to `cases' already referred and not to cases not yet referred at the date of Constitution. It is, therefore, clear that there is no nexus which connects the' basis on which the supposed classification is founded with the object of the Act, for the' object of the Act is wide enough to cover both categories of `cases' and hence it is not a permissible classification."

21. The next case to which reference may be made in the present context is Kedar Nath Bajoria v. The State of West Bengal (AIR1953SC404). The Statute under consideration was the West Bengal Criminal Law Amendment (Special Courts) Act (X XI of 1948). The majority judgment was delivered by Patanlali Sastri, C. J. and it was held that‑-- "The equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of Legislation. To sum up it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible Principle having a reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as denial of the equal protection of the law, for, if the legislation were all embracing in its scope, no question could arise of classification being based on intelligible differentia having a reasonable relation to the legislative purpose. Article 14 does not insist that legislative classification should be scientifically perfect or logically complete. There are cases where the Legislature itself makes a complete classification of persons or things and applies to them the law which it enacts, and others where the Legislature merely lays down the law to be applied to persons or things answering to a given description, or exhibiting certain common charac teristics, but being unable to make a precise and complete classification, leaves it to an administrative authority to make a selective application of the law to persons or things within the defined group, while laying down the standard or at least indicating in clear terms the underlying policy and purpose, in accordance with, and in fulfilment of which the administra tive authority is excepted to select the persons or things to be brought under the operation of the law. Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory, and violative of Article 14 must be determined in each case as it arises, for no general rule applicable to all cases can safely be laid down."

22. Bose, J. delivered a dissenting judgment holding that‑-- "In so far as the Act makes provision of the setting up of Special Courts, and of Special Judges, and in so far as it selects classes of offences which can be tried by them, it is good. Where it is bad as, in section 4(1) where it empowers the Provincial Government to pick out cases from among the specified classes and to send them to Special Courts and thus discriminate between man and man in the same class. On the question of punishment also there is discrimination but that is sever able and would in any event be covered by Article 21."

23. The last case to which our attention has been drawn is Jyoti Pershad v. Union Territory of Delhi (AIR1961SC1602). The sum and substance of the dictum of the Court has been expressed in the head‑note in the form of the following propositions:‑

"(1) If the statute itself or the rule made under it applies unequally to person or things similarly situated, it would be an instance of a direct violation of the constitutional guarantee and the provision of the statute or the rule in question would have to be struck down. (2) The enactment of the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the Legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi judicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate. In such circumstances, the very provision of the law which enables or permits the authority to discriminate, offends the guarantee of equal protection afforded by Article 14. (3) The above rule would not apply to cases, where the Legislature lays down the policy and indicates the rule or the line of acting which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of Article 14 could arise, unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case, there might be a transgression by the authority of the limits laid down or an abuse of power, but the actual order would be set aside in appropriate proceedings not so much on the ground of a violation of Article 14, but as really being beyond its power. (4) It is not however, essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself. Such guidance may thus be obtained from or afforded by (a) the preamble read m the light of surrounding circumstances which necessitated the legislation, taken in conjunction with well‑known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits."

24. The above review of decided cases, and particularly the propositions of law summarised in the last case to which we have referred, leave no doubt that a statute or the rules framed thereunder would not infringe the clause relating to the equal protection of the laws, if there is reasonable classification bearing a relation to the object underlying the special legislation, and if standards or norms are laid down for the guidance of the executive or administrative authorities which are called upon to apply such special legislation to individual cases or persons or class of cases and persons. The authorities have made it abundantly clear that the Legislature cannot be expected to lay down a scientifically perfect classification and that discretion has necessarily to be given to the statutory functionaries called upon to operate the special statute. As long as the intent and policy of the Legislature is made clear, and principles or standards are laid down for the guidance of the executive authorities, no exception can be taken to the trial of specific cases or class of cases before the special forum created under the special law, leaving other similar cases, to be dealt with by the ordinary law.

25. Now, in the present case, although the guarantee of equality before law is not contained in a constitutional instrument, but merely in the statute itself, yet the same principles of interpretation can safely be applied for determination whether rule 3 is ultra vires of subsection (2) of section 33 of the Act. When we peruse this rule, as it stood on the relevant date, we find that it lays down the factors which may among others be considered by the Commissioner in determining whether a case should be referred to a Tribunal for decision. In regard to cases of murder, culpable homicide not amounting to murder, attempt to murder, dacoity and robbery cases, the factors to be considered are that the accused have not been named in the first information report, or the assassins or any of them are alleged to have been hired or that the offence is alleged to have been committed between the hours of sunset and sunrise. These things are mentioned in clause (a) of rule

3. Similarly, clauses (b) to (j) deal with factors to be considered with regard to other scheduled offences. It seems to us that the factory enumerated in rule 3 do provide tangi ble guide lines for the exercise of discretion by the executive authority in deciding whether a particular case should be referred to a Tribunal or not. There is thus no question here of the executive authority enjoying uncontrolled and arbitrary power, unguided by any principle or standard having a relation to the object and the policy underlying the Act.

26. We further find that the factors enumerated in rule 3 have a direct bearing on the purpose for which the Act was enacted, namely, to provide more speedy trial and more effective punishment of certain heinous offences. We can take judicial notice of the fact that the absence of the names of the accused persons in the first information report, or the commission of the crime during the hours of sunset and sunrise, or the fact that the assassins are hired persons and could not, therefore, be easily connected with the crime, are factors which have very often resulted in serious crime, remaining unpunished; and accordingly a consideration of these factors while deciding the question whether a case should be referred to a Tribunal or not under this Act, has direct relevance to the purpose and policy underlying the Act.

27. For the foregoing reasons, we have come to the conclusion that rule 3 as it existed on the date the reference was made in this case, and even in its amended form at present, is not violative of the equality clause as contained .in subsection (2) of section 33 of the Act. The rule is not ex facie discriminatory in character; on the other hand, it purports to lay down definite standards and guide lines having a direct relation to the object of the Act, thus serving as a useful clog on the wide power given by section

3. It was complained that in certain cases the statutory functionary has not acted in accordance with the factors or principles enumerated in rule 3, and references have been made to Tribunal in clear disregard of these principles. In the present case, there is no such allegation but it is clear that the mere fact that the statutory functionary violates the principles laid down in rule 3 would not make the rule itself ultra vires of the Act, as observed by Patanjali Sastri, C. J. in Kedar Nath Bajoria v. The State of West Bengal. The question would then have to be decided on the facts and circumstances of that particular case.

28. On the view that we have taken regarding the two contentions advanced on behalf of the petitioner, the petition fails and is hereby dismissed. The parties are, however, left to bear their own costs in view of the legal questions involved. K. B. A. Petition dismissed.