19 November 1958
Supreme Court
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BASHESHAR NATH Vs THE COMMISSIONER OF INCOME-TAX,DELHI & RAJASTHAN & ANOTHER

Bench: DAS, SUDHI RANJAN (CJ),BHAGWATI, NATWARLAL H.,DAS, S.K.,KAPUR, J.L.,SUBBARAO, K.
Case number: Appeal (civil) 208 of 1958


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PETITIONER: BASHESHAR NATH

       Vs.

RESPONDENT: THE COMMISSIONER OF INCOME-TAX,DELHI & RAJASTHAN & ANOTHER.

DATE OF JUDGMENT: 19/11/1958

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. DAS, S.K. KAPUR, J.L. SUBBARAO, K.

CITATION:  1959 AIR  149            1959 SCR  Supl. (1) 528  CITATOR INFO :  R          1960 SC1080  (24)  E&R        1960 SC1125  (26)  R          1961 SC1457  (6)  RF         1962 SC  92  (6,11)  MV         1966 SC1089  (54)  RF         1967 SC1643  (14)  E          1970 SC 898  (60)  RF         1973 SC1461  (311,313,405,447,533,1693,1933  RF         1975 SC1121  (18)  RF         1975 SC2299  (344,528)  R          1976 SC1207  (157,516)  RF         1977 SC1496  (18)  RF         1979 SC  25  (40)  RF         1980 SC1362  (24)  RF         1981 SC 679  (12)  R          1986 SC 180  (29)  D          1987 SC 925  (13)  RF         1990 SC1480  (52)  C          1991 SC 101  (257)

ACT: Income-tax-Evasion    of    taxation-Case    referred     to Investigation  Commission-Commencement of the  Constitution- Settlement  of case --Constitutional validity  of-Waiver  of fundamental   right,  if  permissible-Taxation   of   Income (Investigation  Commission) Act, 1947 (30 Of 1947),  s.  8A- Constitution of India, Art. 14, Part III.

HEADNOTE: The two questions for determination in this appeal were, (1) whether  a settlement under s. 8A of the Taxation of  Income (Investigation Commission) Act, 1947 (30 Of 1947) made after the  commencement of the Constitution  was  constitutionally valid and (2) whether the waiver of a fundamental right  was permissible  under the Constitution.  The  appellant’s  case was  on  July 22, 1948, referred by the  Central  Government under  S. 5(1) of the Act to the  Investigation  Commission. for  investigation and report.  The Commission directed  the authorised  official  under s. 6 of the Act to  examine  the

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appellant’s accounts.  He submitted his final report by  the end of 1953.  The Commission considered the report heard the assessee  and came to the conclusion that Rs.  4,47,915  had escaped  assessment.   Thereupon the appellant  on  May  20, 1954, applied to the Commission for a settlement of his case under s. 8A of the Act, agreeing to pay Rs. 3,50,000 by  way of tax and penalty at the concessional rate.  The Commission reported   to  the  Central  Government  approving  of   the settlement,  the Central Government accepted it and  it  was recorded by the Commission.  The Central Government directed the  recovery of the said amount under s. 8A(2) of the  Act. The  appellant  was permitted to make  payments  by  monthly instalments  of Rs. 5,000 and the total amount thus paid  up to  September 8, 1957, aggregated to Rs. 1,28,000.   In  the meantime  the  Income Tax Officer issued a  certificate  and certain properties of the appellant were attached.   Relying on  the decisions of this Court in Suraj Mall Mohta and  Co. v.  A. V. Visvanatha Sastri, [1955] 1 S.C.R. 448 and M.  Ct. Muthiah v. The Commissioner of Income-tax, Madras, [1955]  2 S.C.R.  1247, the appellant applied to the  Commissioner  of Income-tax  challenging the validity of the settlement  made under s. 8A of the Act on the ground that S. 5(1) Of the Act on  which  it  was founded had been declared  void  by  this Court,  and  claimed that his properties might  be  released from  attachment  and the amount paid under  the  settlement might  be  refunded  to  him.,  On  January  29,  1958,  the Commissioner  of  Income Tax sent a reply to  the  appellant maintaining that the settlement was valid and                     529 that  the  appellant  was bound thereunder  to  pay  up  the arrears of instalments and requesting him to continue to pay in  future.   Against this decision of the  Commissioner  of Income  Tax the. appellant came up to the Supreme  Court  by special leave.  It was contended on behalf of the respondent that   the  Act  laid  down    two   distinct   and separate procedures,   one  for  investigation  and  the  other   for settlement and it was the former alone and not the D, latter that  was affected by the decisions of this Court. and  that the  appellant by voluntarily entering into  the  settlement had  waived his fundamental right founded on Art. 14 of  the Constitution. Held (Per Curiam), that both the contentions must fail. It  was not correct to say that the Taxation of Income  (In- vestigation  Commission) Act, 1947, laid down two  different procedures,  one for investigation and assessment  under  s. 8(2)  of the Act and another for settlement under s.  8A  of the Act and assessment in terms of such settlement and  that while  the decision of this Court in M. Ct.  Muthiah v.  The Commissioner of Incometax, Madras, declaring s. 5(1) of  the Act  to be discriminatory and therefore void, affected  only the former procedure and not the latter.  The Act laid  down but  one  procedure  and  in  entertaining  a  proposal  for settlement  as  in the investigation itself  the  Commission exercised the same jurisdiction, and powers and followed the one and the same procedure as laid down by ss. 5, 6 and 7 Of the  Act.  Since the settlement in the instant case  was  no exception  to that rule, it was covered by the decision  and must be held to be violative of Art. 14 Of the Constitution. M.   Ct. Muthiah v. The Commissioner of Income-tax,  Madras, [1955] 2 S.C.R. 1247, applied. The observations made in the majority judgment of this Court in Syed Qasim Razvi v. The State of Hyderabad, [1953] S.C.R. 589, must be kept strictly confined to the special facts  of that case and had no application to the facts of the present case.

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Syed  Qasim Razvi v. The State of Hyderabad,  [1953]  S.C.R. 589, held inapplicable. Per Das, C. J., and Kapur J.-There could be no waiver of the fundamental right founded on Art. 14 Of the Constitution and it  was  not correct to contend that the  appellant  had  by entering into the settlement under s. 8A of the Act,  waived his  fundamental right under that Article.  Article  14  was founded  on a sound public policy recognised and valued  all over  the civilised world, its language was the language  of command  and it imposed an obligation on the State of  which no  person could, by his act or conduct, relieve it.  As  it was  not strictly necessary for the disposal of  this  case, the  question whether any other fundamental right  could  be waived need not be considered in this connection. Laxamanappa  Hanumantappa jamkhandi v. The Union  of  India, [1955] 1 S.C.R. 769; Dewan-Bahadur Seth Gopal Das Moht 67 530 v.   The  Union  of  India,  [1955]  1  S.C.R.773;   Baburao Narayanrao  Sanas  v. The Union Of India, [1954]  26  I.T.R. 725; Subedar v. State, A.I.R. 1957 All. 396 and Pakhar Singh v. The State, A.I.R. 1958 Punj. 294, distinguished and  held inapplicable. Per  Bhagwati  and gubba Rao, jj.-There could be  no  waiver ’.,not  only of the fundamental right enshrined in  Art.  14 but  also of any other fundamental right guaranteed by  Part III   of  the  Constitution.   The  Constitution   made   no distinction  between  fundamental  rights  enacted  for  the benefit  of the individual and those enacted in  the  public interest  or on grounds of the public policy.  There  could, therefore,  be  no  justification  for  importing   American notions  or authority of decided cases to whittle  down  the transcendental  character  of  those  rights,  conceived  in public interest and subject only to such limitations as  the Constitution had itself thought fit to impose. Article  13(2) was in terms a constitutional mandate to  the State  in respect of all the fundamental rights  enacted  in Part III of the Constitution and no citizen could by  waiver of  any  one  of  them  relieve  the  State  of  the  solemn obligation  that lay on it.  The view expressed by  Mahajan, C.  J., in Behram Khurshed Pesikaka v. The State of  Bombay, [1955]  1  S.C.R. 613, correctly laid down the  law  on  the point.  Since the arguments in the instant case had  covered the entire field of fundamental rights, there was no  reason why the answer should be confined to Art. 14 alone. Behram  Khurshed Pesikaka v. The State of Bombay,  [1955]  1 S.C.R.  613; State of Travancore-Cochin v. The  Bombay  Co., Ltd., [1954] S.C.R. 1112 and The State of Bombay v. R. M. D. Chamarbaugwala, [1957] S.C.R. 874, referred to. Per  S.  K. Das, J.-It seems clear that Art. 13  itself  re- cognises  the  distinction between  absence  of  legislative power  which  will  make  the law  made  by  an  incompetent legislature  wholly void, and exercise of legislative  power in  contravention of a restriction or check on  such  power, which  will  make  the  law  void  to  the  extent  of   the inconsistency  or contravention; therefore the mere  use  of the  word " void " in Art. 13 does not necessarily  militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of the Constitution. Behram  Khurshed Pesikaka v. The State of Bombay,  [1955]  1 S.C.R. 613, considered. Bhikaji  Narain  Dhakyas  v. The State  of  Madhya  Pradesh, [1955] 2 S.C.R. 589; M. Ct.  Muthiah v. The Commissioner  of Income-tax,  Madras, [1955] 2 S.C.R. 1247 and The  State  of Bombay v. R.M.D. Chamarbaugwala, [1957] S.C.R. 874, referred

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to. There was nothing in the two preambles to the Indian and the American  Constitutions  that  could make  the  doctrine  of waiver applicable to the one and not to the other; since the doctrine 531 applied  to  the constitutional rights  under  the  American Constitution, there is no reason why it should not apply  to the fundamental rights under the Indian Constitution. Case-law considered. But it must be made clear that there is no absolute rule, or one  formulated in the abstract, as to the applicability  of that  doctrine to fundamental rights and such  applicability must depend on (1) the nature of fundamental right to  which it  is  sought to be applied and (2) the foundation  on  the basis  of which the plea is raised.  The true test  must  be whether the fundamental right is one primarily meant for the benefit  of  individuals or for the benefit of  the  general public. Where,  therefore, the Constitution vested the right in  the individual,  primarily  intending to benefit  him  and  such right  did not impinge on the rights of others, there  could be  a waiver of such right provided it was not forbidden  by law or did not contravene public policy or public morals. As  in the instant case the respondents who had  raised  the plea,  had failed to prove the necessary facts on  which  it could be sustained, the plea of waiver must fail. Per  Subba  Rao, J.-Apart from the question  as  to  whether there  could be a waiver in respect of a fundamental  right, s. 5(1) of the Taxation of Income (Investigation Commission) Act, 1947, having been declared void by this Court in M. Ct. Muthiah v. The Commissioner of Income-tax, Madras, as  being violative of the fundamental right founded on Art’ 14 Of the Constitution  and such decision being binding on all  courts in India, the Commissioner of Income-tax had no jurisdiction to continue the proceedings against the appellant under that Act  and  the appellant could not by a waiver of  his  right confer jurisdiction on him. No  distinction could be made under Art. 13(1) of  the  Con- stitution  between  the  constitutional  incompetency  of  a legislature  and  constitutional limitation  placed  on  its power of legislation, for a statute declared void on  either ground would continue to be so, so long as the inconsistency continued.  As the inconsistency of S. 5(1) of the Act  with Art. 14 continued, it must continue to be void. Keshavan Madhava Menon v. The State of Bombay, [1951] S.C.R. 228;  Behram Khurshed Pesihaka v. State of Bombay, [1955]  1 S.C.R.  613  and Bhikaji Narain Dhakras v. State  of  Madhya Pradesh, [1955] 2 S.C.R. 589, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.208 of 1958. Appeal  by  special leave from the order dated  January  29, 1958, of the Commissioner of Income-tax,Delhi & Rajasthan at New Delhi, under s. 8A(2) of the 532 Taxation on Income (Investigation Commission) Act, 1947. Harnam Singh and Sadhu Singh for the appellant. M.   C.   Setalvad,  Attorney-General  for  India,   C.   K. Daphtary,  Solicitor-General  of  India, B. Sen  and  R.  H. Dhebar for the respondents. A.   C. Mitra and B. P. Maheshwari, for the interveners. 1958.  November 19.  The Judgment of Das, C. J., and  Kapur,

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J.,,  was  delivered by Das, C. J. Bhagwati, S. K.  Das  and Subba Rao, JJ., delivered separate judgments. DAS,  C. J.-This appeal by special leave filed by  one  Shri Besheshar  Nath hereinafter referred to as ",the assessee  " calls in question the validity of a settlement made under s. 8A of the Taxation on Income (Investigation Commission) Act, 1947  (30  of  1947),  hereinafter  referred  to  as  "  the Investigation Act ". This Act, which came into force on  May 1, 1947, by a notification issued by the Central  Government under s.  (1)  (3)  thereof, has had a short  but  chequered career, as     will   appear  from  the  facts   hereinafter stated. In  order  to  appreciate the  several  questions  canvassed before us it is necessary to refer to the provisions of  the impugned  Act.  Section 3 authorised the Central  Government to   constitute  an  Income  Tax  Investigation   Commission (hereinafter  called the Commission) and imposed on  it  the following duties:- " (a) to investigate and report to the Central Government on all matters relating to taxation on income, with  particular reference  to the extent to which the existing law  relating to, and procedure for, the assessment and collection of such taxation is adequate to prevent the evasion thereof; (b)  to  investigate  in accordance with the  provisions  of this Act any case or points in a case -referred to it  under section 5 and make a report thereon (including such  interim report  ’ s as the Commission may think fit) to the  Central Government in respect of all or any of the assessments  made in relation to the case 533 before the date of its report or interim report, as the case may be." We  may skip over s. 4 which dealt with the  composition  of the  Commission.  Section 5, which is of importance  was  as follows:- " 5. (1) The Central Government may at any time’ before  the 30th  day  of  June,  1948,  refer  to  the  Commission  for investigation  and  report any case or points in a  case  in which  the  Central Government has prima facie  reasons  for believing  that a person has to a substantial extent  evaded payment  of taxation on income, together with such  material as  may be available in support of such belief, and  may  at any  time  before the 30th day of June, 1948, apply  to  the Commission  for  the withdrawal of any case or points  in  a case  thus referred, and if the Commission approves  of  the withdrawal, no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn. (2)  The  Commission  may,  after  examining  the   material submitted  by the Central Government with reference  to  any case or points in a case and making such investigation as it considers  necessary, report to the Central Government  that in its opinion further investigation is not likely to reveal any  substantial evasion of taxation on income and  on  such report  being made the investigation shall be deemed  to  be closed. (3)  No reference made by the Central Government under  sub- section (1), at any time before the 30th day of June,  1948, shall  be called in question, nor shall the  sufficiency  of the  material  on which such a reference has  been  made  be investigated in any manner by any Court. (4)  If  in  the course of investigation into  any  case  or points  in a case referred to it under sub-section (1),  the Commission has reason to believe- (a)that  some  person other than the person  whose  case  is

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being investigated has evaded payment of taxation on income, or (b)  that some points other than those referred to 534 it  by  the Central Government in respect of any  case  also require investigation, it  may make a report to the Central Government stating  its reasons for such belief and, on receipt of such report,  the Central Government shall, notwithstanding anything contained in  sub-section (1), forthwith refer to the  Commission  for investigation  the  case  of  such  other  person  or   such additional points as may be indicated in that report." The date " 30th day of June, 1948 " appearing in sub-ss. (1) and  (3) was, by Act 49 of 1948, substituted by the words  " 1st day of September, 1948 ". Section 6 set out the  various powers  conferred on the Commission and s. 7 prescribed  the procedure of the Comission.  It is not necessary to set  out the  various  powers  and the details of  the  procedure  in extenso  and  it  will suffice to say that  they  have  been considered  by  this Court and pronounced to  be  much  more drastic  and harsh than the powers to be exercised  and  the procedure  to  be  followed by the  income  tax  authorities acting  under the provisions of the Indian Income  Tax  Act, 1922.  The relevant portions of s. 8 ran as follows:- "  8.  (1)  Save  as otherwise provided  in  this  Act,  the materials  brought on record shall be considered by all  the three  members  of the Commission sitting together  and  the report  of  the Commission shall be in accordance  with  the opinion of the majority. (2)  After  considering the report, tile Central  Government shall by order in writing direct that such proceedings as it thinks fit under the Indian Income Tax Act, 1922, the Excess Profits  Tax  Act, 1940, or any other law,  shall  be  taken against  the  person  to whose case the  report  relates  in respect  of  the income of any period commencing  after  the 31st day of December, 1938; and, upon such a direction being given,  such proceedings may be taken ’and  completed  under the   appropriate  law  notwithstanding   the   restrictions contained in   section  34  of the Indian  Income  Tax  Act, 1922, or section 15 of the Excess Profits Tax Act, 1940,  or any  other law and notwithstanding any lapse of time or  any decision to a different effect given 535 in  the  case  by any Income tax  authority  or  Income  Tax Appellate Tribunal. (3)......................................................... (4)  In all assessment or re-assessment proceedings taken in pursuance  of  a  direction  under  sub-section’  (2),   the findings  recorded by the Commission on the case or  on  the points  referred to it shall, subject to the  provisions  of sub-sections (5) and (6), be final; but no proceedings taken in  pursuance  of  such  direction shall be  a  bar  to  the initiation  of  proceedings under section 34 of  the  Indian Income Tax Act, 1922. (5)......................................................... (6)......................................................... (7)  Notwithstanding anything to the contrary  contained  in this  Act or in any other law, for the time being in  force, any  evidence in the case admitted before the Commission  or an  authorised official shall be admissible in  evidence  in any proceedings directed to be taken under sub-section (2). (8)......................................................... Section  9  barred  the jurisdiction of Courts  to  call  in question  any  act or proceeding of the  Commission  or  any authorised  official appointed under s. 6. Section  10  gave

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power   to   the  Central  Government  to  make   rules   by notification in the official gazette. On  July 22, 1948, the case of the assessee was referred  to the  Commission in the following terms: " Ministry of Finance (Revenue Division)    New Delhi, the 22nd July, 1948. Under section 5 (1) of the Taxation on Income (Investigation Commission)  Act, 1947, the cases of the  following  persons are  hereby  referred to the  Investigation  Commission  for investigation  and  report, as the  Central  Government  has prima facie reasons for believing that each such person  has either  alone  or  in combination  with  the  other  persons mentioned  below, evaded payment of taxation on income to  a substantial 536 extent.   The material available in support of ’such  belief accompanies. ------------------------------------------------------------       No.                                   Name ------------------------------------------------------------    EP. 829/1                    Beshashar Nath and Co. 829/2                    Lala Beshashar Nath.                          Sd./-Pyare Lal,                          Deputy Secretary,                          Ministry of Finance                          (Revenue Division).     The Secretary,Income-tax, Investigation Commission, New Delhi." It   is  not  necessary  to  set  out  the  annexures   that accompanied  this  Orders It appears that the  total  wealth statement  of the assessee was filed on November  10,  1948, and  was  forwarded  to the authorised  official.   It  also appears that from January 8, 1949, to October 14, 1949,  the authorised  official  was  engaged  in  the  collection   of assessment  records  of the assessee  from  the  territorial income tax offices and of materials from the Civil  Supplies Directorate  regarding the assessee.  In the meantime by  a. 33  of Act 67 of 1949 the following section was inserted  in the Act as s. 8A:- " 8A.  Settlement of cases under investigation:(1) Where any Person  concerned in any case referred to or pending  before the  Commission for investigation applies to the  Commission at  any time during such investigation to have the  case  or any part thereof settled in so far as it relates to him, the Commission shall, if it is of opinion that the terms of  the settlement  contained  in the application may  be  approved, refer  the  matter  to the Central Government,  and  if  the Central Government accepts the terms of such settlement, the Commission  shall  have  the  terms  thereof  recorded   and thereupon  the  investigation, in so far as  it  relates  to matters  covered by such settlement, shall be deemed  to  be closed. (2)  For  the  purpose  of  enforcing  the  terms  of   any, settlement arrived at in pursuance of sub-section (1),                     537 the  Central Government may direct that such proceedings  as may be appropriate under the Indian Income-tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 1940 (XV of 1940),  or any  other law may be taken against the person to  whom  the settlement relates, and in particular the provisions of  the second  proviso to clause (a) of-sub-section (5) of  section 23,  section  24B, the proviso to sub-section 2  of  section 25A, the proviso to subjection 2 of section 26 and  sections 44  and  46  of the Indian Income-tax Act,  1922,  shall  be applicable  to  the recovery of any sum  specified  in  such

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settlement by the, Income Tax Officer having jurisdiction to assess the person by whom such sum is payable as if it  were income-tax or an arrear of income-tax within the meaning  of those provisions. (3)  Subject to the provisions of sub-section (6) of section 8,  any  settlement arrived at under this section  shall  be conclusive  as to the matters stated therein, and no  person whose case has been so settled be entitled to re-open in any proceeding for the recovery of any sum under this section or in  any  subsequent assessment  or  reassessment  proceeding relating  to taxation on income or in any  other  proceeding before  any Court or other authority any matter which  forms part of such settlement. (4)  Where  a  settlement has been  accepted  by  Government under  sub-section (1), no proceedings under section  34  of the  Indian  Income  Tax Act, 1922 (XI of  1922),  or  under section 15 of the Excess Profits Tax Act, 1940 (XV of 1940), shall be initiated in respect of the items of income covered by the settlement, unless the initiation of such proceedings is expressly allowed by the terms of the settlement." On  July  5, 1949, the total wealth statement  was  received back  from the authorised official.  Our  Constitution  came into force on January 26, 1950.  The order-sheet shows  that the authorised official on May 26, 1950, issued a notice  to the  assessee  fixing the hearing for June 10,  1950,  which indicates  that the authorised official was proceeding  with the  investigation  set in motion by the  reference  of  the assessee’s 68 538 case  to  the  Commission.  The  assessee  appears  to  have attended on June 6, 1950, with an application for  extension of time which apparently was given.  On September 30,  1950, the  assessee supplied certain statements of his firm.   The entry  in  the order-sheet ,,,against the date  October  31, 1950, shows that the assessee asked for further extension of time.   There  appears to be a hiatus of about 3  years  and evidently  nothing  was done until June 9,  1953,  when  the authorised  official fixed the hearing of the case  on  June 15,  1953.   The authorised official submitted  his  interim report to the Commission on June 9. 1953.  The assessee  was examined  on October 9, 10 and 13, 1953, and the  authorised official submitted his final report on October 19, 1953.  On January  30,  1954,  notice was issued to  the  assessee  to appear   before  the  Commission  on  February   15,   1954. Presumably  to  get ready for the hearing the  assessee,  on February 5, 1954, asked for inspection of certain assessment orders  concerning  his case-, for the return of  his  lease deed  filed  by him and a copy of the statement  of  one  L. Kalidas  and for production of certain documents before  the Commission.  The hearing, which had been fixed for  February 15, 1954, was adjourned till March 4, 1954.  Witness Kalidas was  examined  on March 4,. 1954.  On March  29,  1954,  the assessee  asked for a, copy of the deposition given  by  the witness Durgadas before the Commission.  After the  evidence was closed notice was issued to the assessee on May 1, 1954, asking him to appear before the Commission on May 19,  1954. On that date the assessee attended, arguments were heard and orders  were  reserved.  Learned counsel  for  the  assessee states  that at the close of the arguments on May 19,  1954, the  Commission announced its view that the income,  profits and  gains that had escaped assessment in the hands  of  the assessee  for the period beginning with April 1,  1939,  and ending  March 31, 1947, were the sum of Rs.  4,47,915,  that the  Commission also threw a hint that should  the  assessee

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accept the said finding he would be granted the benefit of a settlement  on the lower concessional basis of.  payment  of 75% and a small penalty of Rs. 14,064 539 other  alternative than to make the best of the bad  job  by proposing  a  settlement  under s. 8A offering  to  pay  Rs. 3,50,000 by way of tax and penalty.  This sequence of events is  amply borne out by paragraphs 3 and 4 of the  settlement application filed by the assessee on May 20, 1954, a copy of which  has been produced before us by the respondents.   The Commission on May 24, 1954, made a report under s. 8A (1) to the Central Government that it was of opinion that the terms of   settlement  contained  in  the  application  might   be approved.   The  Central  Government  having  accepted   the proposed  settlement, the Commission had the  terms  thereof recorded.  The Central Government by its Order C No. 74  (9- IT)  54  made  on  July 5, 1954, under  s.  8A  (2)  of  the Investigation Act directed that demand notice in  accordance with the said terms be served immediately by the Income  Tax Officer and that all such other proceedings under the Indian Income  Tax  Act or other law as may be necessary  be  taken with  a view to enforce the payment of the demand  and  that the  entire sum of Rs. 3,50,000 be demanded in one sum.   It appears,  however,  that the assessee was  allowed  to  make payments by instalments of Rs. 5,000, per month. In  the  meantime  on May 28,  1954,  this  Court  delivered judgment  in  Suraj Mall Mohta and Co. v. A.  V.  Visvanatha Sastri (1).  In that case in the course of investigation  of the  case of Messrs.  Jute and Gunny Brokers Ltd. which  had been  referred  to  the Commission under s.  5  (1)  of  the Investigation Act, it was alleged to have been discovered by the Commission that Suraj Mall Mohta and Co. had made  large profits  which  they had not disclosed and had  thus  evaded taxation.   A  report  to that effect having  been  made  on August 28, 1953, by the Commission to the Central Government under  s.  5  (4)  of  the  Investigation  Act  the  Central Government  on September 9, 1953, referred the case  against Suraj  Mall  Mohta  and  Co. to  the  Commission  under  the provisions  of  s.  5  (4).   On  September  15,  1953,  the Commission notified Suraj Mall [1955]  1 S.C.R.448 540 Mohta  and  Co.  that  their cases  had  been  referred  for investigation  and  called  upon  them  to  furnish  certain materials, details of which were set out in annexure to  the petition.  On April 12, 1954, Suraj Mall Mohta and Co. filed a  petition under Art. 32 of the Constitution asking for  an appropriate writ restraining the, Commission from taking any action   on   the  ground  that  the   provisions   of   the Investigation  Act had become void being  discriminatory  in character.  By that judgment this Court held that both s. 34 of  the Indian Income Tax Act, 1922, as it then  stood,  and sub-s.  (4)  of  s. 5 of the Investigation  Act  dealt  with persons who had similar characteristics of being persons who had not truly disclosed their income and had evaded  payment of tax on their income but that as the procedure  prescribed by the Investigation Act was substantially more  prejudicial than  the procedure under the Indian Income Tax  Act,  1922, sub-s.  (4)  of  s. 5 and the procedure  prescribed  by  the Investigation   Act,-in  so  far  as  it  affected   persons proceeded  against  under that sub-section was  a  piece  of discriminatory legislation which offended the provisions  of Art.  14  of the Constitution and was, therefore,  void  and unenforceable. Sub-section (4) of s. 5 of the Investigation Act having been

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declared  void,  Parliament  passed the  Indian  Income  Tax Amendment  Act  (33 of 1954) amending s. 34  of  the  Indian Income  Tax  Act,  1922.  Paradoxical as it  may  seem,  the result  of this amendment was that persons  who  originally, fell only within the ambit of s. 5 (1) of the  Investigation Act  and formed a distinct class of substantial tax  evaders also came within the amended s. 34 of the Indian Income  Tax Act, 1922.  The position after the amendment, therefore, was that  the Income Tax Officers could pick out some  of  these persons and refer their cases under s. 5 (1) of the Investi- gation Act and thereby subject them to the drastic and harsh procedure  of  that Act, while they could  deal  with  other persons  similarly situate under s. 34 as amended and  apply to  them  the comparatively more beneficial  procedure  laid down  in the Indian Income Tax Act, 1922.  Promptly  several applications were 541 made  under  Art. 32 of the  Constitution  complaining  that after  the amendment of s. 34 of the Indian Income Tax  Act, s.  5 (1) of the Investigation Act became discriminatory  in that the persons falling within it could be dealt with under the  drastic, prejudicial and harsh procedure prescribed  by the  Investigation  Act,  while    other   persons similarly situate and belonging to the same category could at the whim or  pleasure  of  the Income Tax  authorities  be  proceeded against under the more beneficial procedure prescribed under the  Indian  Income Tax Act.  All  those  applications  were disposed of by a common judgment reported as Shree Meenakshi Mills  Ltd.  v. Sri A. V. Visvanatha Sastri (1)  This  Court held  that  s. 34 of the Income Tax Act, as amended  by  the Indian Income Tax Amendment Act, 1954 (33 of 1954), operated on the same field as s. 5 (1) of the Investigation Act, and, therefore, s. 5 (1) had become void and unenforceable as the procedure  applied to persons dealt with  thereunder  became discriminatory  in  character.  It should be noted  that  in none of those petitions disposed of by that judgment had any assessment  been made under the Investigation Act  and  this Court   only  prohibited  further  proceedings  before   the Commission  under  the  Investigation  Act.   The   assessee appellant  now before us who had entered into  a  settlement under s. 8 of the Investigation Act and had been assessed in accordance with the terms of the settlement continued to pay the tax by monthly instalments of Rs. 5,000 as before. Finally  on  December 20, 1955, came the  decision  of  this Court in M. CT.  Muthiah v. The Commissioner of Income  Tax, Madras (2). In that case the Central Government had under s. 5  (1)  of the Investigation Act referred the  case  to  the Commission.    The  Commission  after  holding  an   enquiry recorded its findings and held that an aggregate sum of  Rs. 10,07,322-4-3 represented the undisclosed income during  the period under investigation.  The Commission having submitted its  report  to the Central Government,  the  latter  acting under  s.  8  (2) of the  Investigation  Act  directed  that appropriate action under the (1) [1955] 1 S. C. R. 787. (2) [1955] 2 S. C. R. 1247. 542 Indian Income Tax Act, 1922, be taken against that  assessee with  a  view to assess or re-assess the  income  which  had escaped  assessment for the period 1940-41 to 1948-49.   The Income  Tax Officer accordingly issued notices and made  the re-assessment for the years 1940-41, 1941-42 and 1943-44  to 1948-49 based upon the finding of the Commission, which  was treated  as final and conclusive.  These  assessment  orders were  served on that assessee.  There was, however,  no  re.

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assessment  order  for the year 1942-43.  In regard  to  the assessment  orders  which  had  been  served  the   assessee concerned applied to the Commissioner of Income Tax under S. 8  (5)  of the Investigation Act for reference to  the  High Court on questions of law arising out of those re-assessment orders.   During  the  pendency  of  those  proceedings  the assessee, in that case on December 6, 1954, filed a petition contending that the provisions of the Investigation Act were illegal, ultra vires and unconstitutional.  The majority  of this Court held that different persons, though falling under the same class or category of substantial evaders of income. tax,  were  being subjected to different procedures,  one  a summary  and  drastic  procedure and the  other  the  normal procedure  which gave to the assessees various rights  which were  denied to those who were specially treated  under  the -procedure   prescribed  by  the  Investigation   Act   and, therefore, the assessments made under s. 8 (2) were void and unenforceable.  That was a case of assessment under s. 8 (2) in  invitum after an investigation under  the  Investigation Act.   The assessee appellant before us, who had at the  end of  the  investigation entered into a  settlement  and  been assessed  in accordance with the terms of  such  settlement, however, went on making payments in discharge of the balance due  under the terms of settlement right up to September  8, 1957,  when he made the last payment of Us.  8,000  bringing the aggregate payment up to Rs. 1,28,000. In   the  meantime  the  Income  Tax  Officer  had  sent   a certificate  requesting  the  Collector  of  Delhi  for  the recovery  of  the  balance due by  the  assessee  under  the settlement.  In execution of that certificate some of                     543 the   properties  belonging  to  the  assessee  situate   in Dharamsalla and Hissar were attached.  On December 27, 1957, the   assessee  made  an  application  to  the  Income   Tax Commissioner.  After pointing out that between July 5, 1954, and  December 27, 1957, the petitioner had paid in  all  Rs. 1,28,000 towards the-’ discharge of his liability under  the settlement  and referring to the decisions of this Court  in suraj  Mall  Mohta’s  case (1) and Muthiah’s  case  (2)  the assessee  submitted that the settlement under a. 8A  of  the Investigation Act had no force and did not bind the petitio- ner and that the settlement had been made under the pressure of  the situation and in view of the coercive  machinery  of the Investigation Act and that from either point of view the settlement was not binding.  His contention was that when s. 5(1) of the Investigation Act had been held unconstitutional the  settlement under s. 8A could not be enforced,  for  the foundation of the proceedings under s. 8A was the  reference under  s. 5(1) and the foundation having crumbled  down  the superstructure  must fall with it.  Under the  circumstances the  assessee  submitted  that the  attached  properties  be released   and  the  amount  already  recovered  under   the settlement be refunded.  On January 29, 1958, the Income Tax Commissioner   sent  the  following  communication  to   the assessee:- No. L-228(1)/54-55/17590  Office  of  the Commissioner Income Tax  Delhi  and Rajasthan, New Delhi.  Dated,  New  Delhi the 29th  January,  1958.   Shri Besheshar Nath, 9, Barakhamba Road, New Delhi. Dear Sir, Sub:-Taxation  on  Income  (Investigation  Commission)  Act, 1947-Order  u/s  8A(2)-Your petition  dated  27th  December,

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1957. With  reference to your petition dated 27th December,  1957, regarding the settlement arrived at (1) [1955] 1 S.C.R. 448. (2) [1955] 2 S.C.R. 1247. 544 under section 8A(2) of the Taxation on Income (Investigation Commission)  Act,  1947,  I  am  to  inform  you  that   the settlement is valid and binding on you. 2.   You  are, therefore, requested to make good arrears  of instalments  which  you  have  not  paid  recently  by   5th February, 1958, and also to continue making the payments  in accordance  with the instalments scheme agreed  to,  failing which  the recovery proceedings will be  vigorously  pursued through the usual recovery channels.              Your’s faithfully,              Sd./- S. K. Gupta,          Commissioner of Income-tax,         Delhi & Rajasthan, New Delhi. Being aggrieved by the above decision the assessee thereupon moved  this  Court  and obtained  special  leave  to  appeal against  that order.  The appeal has now come up  for  final disposal before us. It may be mentioned here that as the respondents are anxious to  have  the matters of controversy raised in  this  appeal decided  and  set at rest by a decision of this  Court,  the respondents,  for  the  purposes of this  appeal,  have  not insisted  on  their objection that an appeal  does  not  lie under  Art. 136 of the Constitution against an order of  the Commissioner  of  Income  Tax.   Learned  counsel  for   the assessee  also has not pressed his claim for refund  of  the amounts  already paid and has pressed the  appeal  regarding the  balance  that remains to be paid under  the  settlement which   is   characterised  as  invalid.    Model   Knitting Industries  Ltd. which has a case pending in the High  Court of Calcutta where the same questions as are in issue in  the appeal  before us, are also in issue has been. permitted  to intervene  and  we  have heard counsel  appearing  for  that intervener. In  view  of the three decisions referred to  above  learned Attorney General does not seriously contend that the  powers conferred  on the Commission by s. 6 and the procedure  laid down   by   s.   7  of  the  Investigation   Act   are   not discriminatory,  but what he urges is that none of the  said decisions has held that s. 5(1) is                     545 wholly  void  and inoperative.  He says that  s.  5(1)  only authorises the Central Government to refer certain cases  to the  Commission.   Upon  such  a  reference  two  lines   of procedure  are clearly indicated by the  Investigation  Act, namely,  (1)  that an investigation may be held  in  invitum following the procedure prescribed and exercising the powers conferred by the lnvestigation Act and (2) that a settlement may be made under s. 8A.  If the first procedure is followed and an assessment is made under s. 8(2) such assessment will undoubtedly  be invalid as has been held in  Muthiah’s  case (1),  but  if  on  a  case  being  referred  the  settlement procedure  is  followed  then  the  consequential  order  of assessment under s. 8A cannot be questioned.  We are  unable to  accept this line of argument as permissible in  view  of the  provisions  of  the  Investigation  Act.   It  will  be recalled that when the case of the assessee was referred  to the Commission under s. 5(1) on July 22, 1948, there was  no provision for settlement in the Act at all.  Therefore, that reference,  when it was made, consigned the assessee to  the

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only procedure of investigation that was then prescribed  by the  Act.   In the next place it should be  remembered  that after  s. 8A was added in the Investigation Act by s. 33  of Act 67 of 1949 an authorised official was appointed under s. 6(3)  to  investigate  the affairs of the  assessee  and  to examine  the books and to interrogate any person  or  obtain any  statement  from  any person and under  sub-s.  (4)  the authorised  official  was  empowered to  exercise  the  same powers  as had been vested in the Commission  under  sub-ss. (1) and (2) of s. 6. Further, by its own terms s. 8A made it clear that the person concerned in any case referred to  the Commission  for investigation might apply to the  Commission at  any  time  during such investigation to  have  the  case settled.   Therefore  this provision for settlement  was  an integral part of the entire investigation procedure.  It was not  a  separate  or independent procedure  apart  from  the investigation procedure.  It is true that there was  nothing to prevent the assessee from straightaway (1)  [1955] 2 S.C.R. 1247. 69 546 making  a  proposal for settlement before  any  actual  step towards   investigation  -was  taken  by  the   Income   Tax authorities,  but  before  the Commission  could  refer  the proposal for settlement to the Central Government it had  to be  satisfied that the terms of settlement contained in  the application were such as might be approved.  For the purpose of satisfying itself the Commission had obviously to go into the facts either by itself or through an authorised official and  to consider the materials collected by  the  authorised official  and  in  the process of doing so had  to  hold  an investigation of some sort and that investigation had neces- sarily   to  be  made  in  accordance  with  the   procedure prescribed   by  the  Investigation  Act  itself.   It   is, therefore,  not  correct to say that there could be  a  pro- ceeding for settlement without any investigation at all.  In our  opinion s. 8A did not provide for a separate  procedure at  all.   When  a case was referred under s.  5(1)  it  was really  for  investigation and a  settlement  was  something which  could  crop up in the process of  that  investigation just  as in the course of a suit parties may arrive at  some compromise.   In  recording  the compromise  and  passing  a judgment  in  accordance with the  compromise  thereof,  the court  exercises  the same jurisdiction as it  exercises  in entertaining and disposing of the suit itself.  Likewise  in entertaining  a  proposal  for  settlement  the   Commission exercised  its  jurisdiction of investigation  under  s.  5, followed the procedure prescribed by s. 7 and exercised  all its  powers  under s. 6. As already stated the  language  of s.8A  itself  shows that a settlement can be  proposed  only during such investigation.  In our judgment, therefore,  the contention   of  the  learned  Attorney  General  that   the Investigation  Act  prescribed two procedures is  not  well- founded. Learned   Attorney   General  then  points  out   that   the Investigation Act was a pre-Constitution Act and that before the commencement of the Constitution when there was no  such thing  as a fundamental right, its provisions could  not  be questioned  however  discriminatory the procedure  may  have been.    He  urges  that  after  the  commencement  of   the Constitution the 547 assessee  has not been subjected to the  coercive  procedure laid   down  by  the  Investigation  Act,  but   voluntarily -proposed  a  settlement which was accepted by  the  Central

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Government on the recommendation of the Commission.  In that situation  he  was in the same position as Qasim  Razvi  had been in and the observations to be found in the judgment  of Mukherjea,  J., who delivered the majority judgment in  Syed Qasim  Razvi  v. The State of Hyderabad (1) applied  to  the present  appeal.  We do not think it is necessary,  for  the purpose  of  this appeal, to go minutely into the  facts  of Qasim   Razvi’s  case  (1)  with  reference  to  which   the observations  relied  on had been made, or  to  analyse  the correctness of the reasoning adopted in that case, for  that can  only be done by a larger Bench.  We are  definitely  of opinion, however, that the observations made in the majority judgement  should not be extended but must be kept  strictly confined to the special facts of that case. In our judgement those observations have no ˜application to the facts of  the present   appeal  before  us,  for  here  even   after   the commencement   of   the   Constitution,   the   process   of investigation continued in that the authorised official went on   collecting   materials  by  following   the   procedure prescribed  by s. 7 and exercising the powers  conferred  on him by s. 6 of the Investigation Act. The  last argument advanced by the learned Attorney  General is  that  if  there  had been a  breach  of  the  assessee’s fundamental  right  by subjecting him  to  a  discriminatory -procedure laid down in the Investigation Act, the  asessee, by voluntarily entering into a settlement, must be taken  to have  waived such breach and cannot now be permitted to  set up  his fundamental right.  Immediately two questions  arise for  consideration, namely, (1) whether the  assessee  could waive  the breach of the fundamental right in  question  and (2)  whether in the facts and circumstances of this case  he had actually done so. Re. (1): In Behram Khurshed Pesikaka v. State of Bombay (2) there was a general discussion whether a (1)  [1953] S.C.R. 589. (2)  [1955] 1 S.C.R. 613. 548 fundamental right could be waived.  At page 638  Venkatarama Aiyar, J., observed:- "  The  question is, what is the legal effect of  a  statute being  declared unconstitutional.  The answer to it  depends on  two  considerations  firstly  does  the   constitutional prohibition  which has been infringed affect the  competence of  the  Legislature  to enact the law  or  does  it  merely operate  as  a check on the exercise of a  power  which  is- within  its  competence;  and secondly, if it  is  merely  a check, whether it is enacted for the benefit of  individuals or  whether  it is imposed for the benefit  of  the  general public  on  grounds  of public policy.  If  the  statute  is beyond  the competence of the Legislature, as  for  example, when  a  State enacts a law which is  within  the  exclusive competence of the Union, it would be a nullity.  That  would also  be  the position when a limitation is imposed  on  the legislative  power in the interests of the public,  as,  for instance, the provisions in Chapter XIII of the Constitution relating  to inter-State trade and commerce.  But  when  the law  is  within the competence of the  Legislature  and  the unconstitutionality  arises by reason of its  repugnancy  to provisions enacted for the benefit of individuals, it is not a   nullity   but   is  merely   unenforceable.    Such   an unconstitutionality  can be waived and in that case the  law becomes  enforceable.   In America this  principle  is  well settled. (Vide Cooley on Constitutional Limitations,  Volume 1, pages 368 to 371 ; Willis on Constitutional Law at  pages 524,  531, 542 and 558 ; Rottschaefer on Constitutional  Law

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at pages 28 and 29-30)." After  referring to three decisions of the American  Supreme Court  which are also now relied on by the learned  Attorney General, the learned Judge concluded as follows:- " The position must be the same under our Constitution  when a law contravenes a prescription intended for the benefit of individuals.   The rights guaranteed under Art. 19  (1)  (f) are enacted for the benefit of owners of properties and when a law is found to infringe that provision, it is open to any person whose rights have been infringed to waive it and when there                     549 is waiver there is no legal impediment to the enforcement of the  law.   It  would  be otherwise if  the  statute  was  a nullity;  in  which  case  it  can  neither  be  waived  nor enforced.   If then the law is merely unenforceable and  can take  effect when waived it cannot be treated as non and  as effaced  out of the statute book.  It is scarcely  necessary to  add  that  the question of waiver  is  relevant  to  the present  controversy  not as bearing on any  issue  of  fact arising  for determination in this case but as  showing  the nature  of the right declared under Art. 19 (1) (f) and  the effect in law of a statute contravening it." When the case came up before the court on review Mahajan, C. J.,  with  the concurrence of Mukherjea,  Vivian  Bose,  and Ghulam Hassan, JJ., said at page 653:- " In our opinion, the doctrine of waiver enunciated by  some American  Judges  in construing  the  American  Constitution cannot  be introduced in our Constitution without  a  fuller discussion of the matter.  No inference in deciding the case should have been raised on the basis of such a theory.   The learned Attorney General when questioned about the  doctrine did  not  seem to be very enthusiastic  about  it.   Without finally  expressing an opinion on this question we  are  not for the moment convinced that this theory has any  relevancy in  construing the fundamental rights conferred by Part  III of our Constitution.  We think that the rights described  as fundamental  rights  are  a  necessary  consequence  of  the declaration  in the preamble that the people of  India  have solemnly  resolved  to  constitute India  into  a  sovereign democratic  republic  and  to secure  to  all  its  citizens justice, social, economic and political; liberty of thought, expression belief, faith and worship; equality of status and of opportunity.  These fundamental rights have not been  put in  the Constitution merely for individual  benefit,  though ultimately   they   come  into  operation   in   considering individual rights.  They have been put there as a matter  of public  policy  and  the  doctrine of  waiver  can  have  no application to provisions of law which have been enacted  as a matter of constitutional policy. 550 Reference to some of the Articles, inter alia, Arts. 15 (1), 20, 21, makes the proposition quite plain.  A citizen cannot get   discrimination  by  telling  the  State  "   You   can discriminate  ", or get convicted by waiving the  protection given under Arts. 20 and 21." On  that  occasion one of us preferred not  to  express  any opinion on this subject and said at page 670:- " In coming to the conclusion that I have, I have in a large measure  found  myself  in  agreement  with  the  views   of Venkatarama Aiyar, J., on that part of the case. 1, however, desire  to  guard myself against being understood  to  agree with  the  rest  of  the observations to  be  found  in  his judgment,   particularly   those  relating  to   waiver   of unconstitutionality,  the  fundamental rights being  a  mere

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check on legislative power or the effect of the  declaration under Art. 13(1) being " relatively void ". On those  topics I prefer to express no opinion on this occasion." It  will, however, be noticed that the observations  of  the learned  judges  made  in that case did not  relate  to  the waiver of a breach of the fundamental right under Art. 14. The  fundamental right, the breach whereof is complained  of by the assessee, is founded on Art. 14 of the  Constitution. The problem, therefore, before us is whether a breach of the fundamental  right flowing from Art. 14 can be waived.   For disposing  Of  this  appeal it is not necessary  for  us  to consider  whether  any  of  the  other  fundamental   rights enshrined  in Part III of our Constitution can or cannot  be waived.   We take the view that this court should  not  make any  pronouncement  on any question which  is  not  strictly necessary for the disposal of the particular case before it. We, therefore, confine our attention to Art. 14 and  proceed to discuss the question on that footing.    Article 14 runs as follows:- "   The State shall not deny to any person  equality  before the  law  or  the equal protection of the  laws  within  the territory of India." It is the first of the five Articles grouped together  under the heading " Right to Equality". - The underlying object of this Article is undoubtedly to secure to                     551 all persons, citizen or non-citizens, the equality of status and  of oppotunity referred to in the glorious  preamble  of our  Constitution.  It combines the English doctrine of  the rule  of law and the equal protection T. clause of the  14th Amendment to the American Federal Constitution which enjoins that   no  State  shall  deny  to  any  person  within   its jurisdiction the equal protection of the laws ". There  can, therefore,  be  no  doubt or dispute that  this  Article  is founded  on a sound public policy recognised and  valued  in all  civilised States.  Coming then to the language  of  the Article it must be noted, first and foremost that this Arti- cle  is, in form, an admonition addressed to the  State  and does not directly purport to confer any right on any  person as  some  of  the other Articles, e.g.,  Art.  19,  do.  The obligation  thus imposed on the State, no doubt, enures  for the  benefit of all persons, for, as a necessary  result  of the  operation  of  this Article, they  all  enjoy  equality before  the  law.  That is, however,  the  indirect,  though necessary  and  inevitable,  result  of  the  mandate.   The command  of  the Article is directed to the  State  and  the reality  of the obligation thus imposed on the State is  the measure  of the fundamental right which every person  within the  territory  of  India is to enjoy.  The  next  thing  to notice is that the benefit of this Article is not limited to citizens,  but  is  available  to  any  person  within   the territory of India.  In the third place it is to be observed that, by virtue of Art. 12, " the State " which is, by  Art. 14,  forbidden to discriminate between persons includes  the Government  and Parliament of India and the  Government  and the legislature of each of the States and all local or other authorities  within  the  territory of India  or  under  the control of the Government of India.  Article 14,  therefore, is  an  injunction to both the legislative as  well  as  the executive  organs  of the State and  the  other  subordinate authorities.  As regards the legislative organ of the State, the fundamental right is further consolidated and  protected by  the provisions of Art. 13.  Clause (1) of  that  Article provides that all laws in force in the territories of  India immediately before the commencement of the Constitution,  in

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so 552 far as they are inconsistent with the provisions of Part III shall, to the extent of the inconsistency be void.  Likewise el. (2) of this Article prohibits the State from making  any law which takes away or abridges the rights conferred by the same  Part and follows it up by saying that any law made  in contravention  of  this clause Shall, to the extent  of  the contravention, be void.  It will be observed that- so far as this  Article  is concerned, there is no relaxation  of  the restriction  imposed by it such as there are in some of  the other  Articles, e.g., Art. 19, cls. (2) to (6).  Our  right to  equality before the law is thus completely  and  without any  exception secured from all legislative  discrimination. It  is  not  necessary, for the purpose of  this  appeal  to consider  whether an executive order is a " law" within  the meaning of Art. 13, for even without the aid of Art. 13  our right  to  the  equal protection of  the  law  is  protected against  the vagaries, if any, of the  executive  Government also.  In this connection the observations of Lord Atkin  in Eshugbayi  Eleko v. Officer Administering the Government  of Nigeria  (1)  are apposite.  Said his Lordship at  page  670 that  in accordance with British jurisprudence no member  of the executive can interfere with the liberty or property  of a British subject except when be can support the legality of his  act  before  a court of justice That  apart,  the  very language  of Art. 14 of the Constitution  expressly  directs that " the State ", which by Art. 12 includes the  executive organ, shall not deny to any person equality before the  law or  the equal protection of the law.  Thus Art. 14  protects us  from  both legislative and executive tyranny by  way  of discrimination. Such  being  the  true  intent and effect  of  Art.  14  the question  arises, can a breach of the obligation imposed  on the  State be waived by any person ? In the face of such  an unequivocal  admonition  administered by  the  Constitution, which  is  the supreme law of the land, is it  open  to  the State  to disobey the constitutional mandate merely  because ’a  person  tells  the  State that it may do  so  ?  If  the Constitution asks the State as (1)  L.R. [1931] A,.C. 662. 553 to  why the State did not carry out its behest, will  it  be any  answer for the State to make that " true, you  directed me not to deny any person equality before the law, but  this person  said that I could do so, for he had no objection  to my doing it." I do not think the State will be in any better position than the positions in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the  State’s above answer will be as futile as was  that  of Adam  who pleaded that the woman had tempted him and  so  he ate  the forbidden fruit.  It seems to us absolutely  clear, on  the language of Art. 14 that it is a command  issued  by the  Constitution to the State as a matter of public  policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India,  is by her Constitution expected to do and no  person can, by any act or conduct, relieve the State of the  solemn obligation  imposed on it by the Constitution.   What.  ever breach of other fundamental right a person or a citizen  may or  may  not waive, he cannot certainly give up or  waive  a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State. The learned Attorney General has relied on various  passages in  text-books  written by well-known and  eminent  writers,

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e.g.,  Cooley,  Willoughby, Willis and Rottschaefer  and  on eight American decisions.  In considering the statements  of law  made  by  American writers  and  judges  the  following observations  of  Patanjali Sastri, C. J., in The  State  of Travancore-Cocochin  and others v. The Bombay Co.  Ltd.  (1) should conatantly be borne in mind:- scope and purpose, and a varying body of doctrines and tests have   grown   around  them   interpreting,   extending   or restricting,   from  time  to  time,  their  operation   and application  in  the  context  of  the  expanding   American commerce  and industry, and we are of opinion that not  much help can be derived from them (1)  [1952] S.C.R. 1112,112O, 1121. 70 554 in  the solution of the problems arising under Art.  286  of the Indian Constitution." (See also The State of Bombay v. R.M.D.  Chamarbaugwala(1)). The  American  authorities  cited by  the  Attorney  General relate  to  waiver of obligations under a contract,  of  the deprivation of right to property without due process of  law or  of  the constitutional right to trial by  jury  and  the like.  They have no bearing on the question of the waiver of the  equal  protection clause of the 14th  Amendment  which, like our Art. 14, is a mandate to the State.  It is signifi- cant that no American decision is forthcoming which  upholds the  waiver  of the breach of that clause.  When a  case  of breach  of  any of the fundamental rights akin to  what  are dealt  with in the American authorities will come before  us it  will,  then,  be  the  time  for  us  to  discuss  those authorities  and  to  consider their  applicability  in  the matter of the interpretation of the corresponding provisions of  our Constitution.  For the moment we prefer  to  confine our observations to a consideration of waiver of the  breach of the fundamental right under Art. 14. Learned  Attorney General has relied on three  decisions  of this  Court:  (1) Laxmanappa Hanumantappa Jamkhandi  v.  The Union  of India (2), (2) Dewan Bahadur Seth Gopal Das  Mohta v.  The Union of India (3) and (3) Baburao Narayanrao  Sanas v.  The  Union of India(4) in support of his thesis  that  a breach  of Art. 14 may well be waived by a person.  In  none of  those cases, all of which were disposed of on  the  same day   (October  21,  1954)  was  the  question   of   waiver specifically  or  seriously discussed.  As  learned  counsel appearing  for the intervener points out, the first  of  the above mentioned cases proceeded on the footing that as  Art. 265  was not a fundamental right conferred by Part  III,  it could  not be enforced under Art. 32.  Learned  counsel  for the  intervener further submitted that the decision  in  the 2nd  case  mentioned above could also be explained  on  that basis and on -the further ground that proceeding under  Art. 32 was not (1)  [1957] S.C.R. 874, 918. (3)  [1955] 1 S.C.R. 773. (2)  [1955] 1 S.C.R. 769 (4)  [1954] 26 I.T.R. 725. intended  to  be  used  for  obtaining  relief  against  the voluntary action of a person and that appropriate remedy for recovery  of money lay in a suit.  The decision in  the  3rd case  proceeded  on  the same basis and did  not  carry  the matter any further.  It is impossible to treat any of  those decisions  as  representing the considered opinion  of  this Court  on  the  question  of  waiver  of  a  breath  of  the fundamental  right  under  Art.  14  of  the   Constitution. Reference  was also made by the learned Attorney General  to

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the  decision of a Single Judge of the Allahabad High  Court in  Subedar v. State (1) where it was held that  Art.  20(3) conferred  merely a privilege and that such privilege  could always  be waived It was overlooked that if a person  volun- tarily answered any question then there was no breach of his fundamental right at all, for the fundamental right is  that a  person  shall not be compelled  to  incriminate  himself. That  case, therefore, is not a case of waiver at all.   The case of Pakhar Singh v. The State (2) is also, for the  same reason, not a case of waiver. Be.  (2):  The answer to this question  depends  upon  facts which  have not been properly investingated.  The appeal  is against the order of the income tax authorities which  order makes  no  reference  to the plea of  waiver.   Further  the filing of the statements of case having been dispensed with, we  have  not had the benefit of the statement of  facts  on which  this plea is said to be founded.  The view  taken  on question (1), however, relieves us of the necessity of going into this question. On  a consideration of the nature of the  fundamental  right flowing from Art. 14, we have no doubt in our mind that  it- is  not  for a citizen or any other person who  benefits  by reason  of  its  provisons  to  waive  any  breach  of   the obligation on the part of the State.  We are, therefore,  of the  opinion that this appeal should be accepted, the  order of  the  Income Tax Commissioner, Delhi, dated  January  29, 1958,  should be set aside and all proceedings  now  pending for  implementation  of the order of  the  Union  Government dated July 5, 1954, (1)  A. I. R. 1957 All. 396. (2)  A. 1. R. 1958 Punj. 294. 556 should  be quashed and that the assessee  appellant,  should get the costs of this appeal. BHAGWATI,  J.-I  agree with the reasoning  adopted  and  the conclusion reached in the judgments prepared by My Lord  the Chief  Justice and my brother, S. K. Das, J., in  regard  to the  ultra vires character of the proceedings adopted  under s. 8-A of the Taxation on Income (Investigation  Commission) Act,  1947  (30  of 1947), and the  void  character  of  the settlement reached thereunder.  As regards the parts of  the judgments which deal with the question whether a fundamental right guaranteed by the Constitution can be waived at all, I find  myself in agreement with the judgment prepared  by  my brother, Subba Rao, J., and am of the opinion that it is not open to a citizen to waive the fundamental rights  conferred by Part III of the Constitution. The  question of waiver came to be argued before us in  this way.If the proceedings and the settlement under section  8-A of the Act were void as aforesaid, the respondent  contended that   the  appellant  had  waived  the  fundamental   right enshrined  in Art. 14 of the Constitution and was  therefore not entitled to challenge the settlement.  This was only  by way of reply to the contention of the appellant and was  not set  out in proper details in any affidavit filed on  behalf of  the respondent.  The learned Attorney-General,  however, relied upon the application made by the appellant before the Investigation  Commission and the contents thereof  as  also the  payments made by the appellant from time to  time  both before and after the pronouncement of our decision in M. Ct. Muthiah  v.  The Commissioner of Income-tax, Madras  (1)  in order  to  support  this plea of waiver  and  the  arguments before  us proceeded on that basis.  No objection was  taken by  either of the parties before us to the issue  of  waiver being decided on such materials and the question was  argued

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at  considerable length before us.  The  arguments  moreover extended  to the whole field of fundamental rights and  were not confined to Art. 14 only. (1)  [1955] 2 S. C. R. 1247.                     557 We,  therefore,  see no reason why we  should  refrain  from pronouncing our opinion on that question. The  preamble to our Constitution, Art. 13 and the  language in  which the fundamental rights have been enacted  lead  to one conclusion and one conclusion only that whatever be  the position  in America, no distinction can be drawn  here,  as has been attempted in the United States of America,  between the  fundamental  rights  which may be  said  to  have  been enacted for the benefit of the individual and those  enacted in public interest or on grounds of public policy.  Ours  is a  nascent  democracy.  and situated as  we  are,  socially, economically,  educationally  and  politically,  it  is  the sacred     duty  of  the  Supreme  Court  to   safeguard the fundamental  rights  which  have been  for  the  first  time enacted in Part III of our Constitution.  The limitations on those  rights have been enacted in the Constitution  itself, e.g., in Arts. 19, 33 and 34.  But unless and until we  find the  limitations on such fundamental rights enacted  in  the very   provisions   of  the  Constitution,   there   is   no justification  whatever for importing any notions  from  the United  States of America or the authority of cases  decided by  the  Supreme Court there in order to  whittle  down  the plenitude of the fundamental rights enshrined in Part III of our Constitution. The genesis of the declaration of fundamental rights in  our Constitution can be traced to the following passage from the Report of the Nehru Committee (1928):- " Canada, Australia and South Africa have no declaration  of rights in their Constitutions but there are various articles to  be  found in the Constitution of the  Irish  Free  State which  may  properly  be grouped under the  general  head  " fundamental  rights  ". The reason for this is  not  far  to seek.   Ireland  is the only country  where  the  conditions obtaining  before  the treaty were the nearest  approach  to those we have in India.  The first concern of the people  of Ireland was, as indeed it is of the people of India  to-day, to secure fundamental rights that have been denied to  them. The other dominions had their rise from earlier British 558 settlements  which were supposed to have carried the law  of England  with  them.  Ireland was taken and kept  under  the rule of England against her own will and the acquisition  of dominion status by her became a matter of treaty between the two  nations.  We conceive that the constitutional  position in India is very much the same.  That India is a  dependency of  Great  Britain cannot be denied.  That position  can  be altered  in one of two ways-force or mutual consent.  It  is the  latter  in furtherance of which we are called  upon  to recommend  the principles of a constitution for  India.   In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances." At  the Round Table Conference that preceded the  making  of the  Government of India Act, 1935, therefore,  the,  Indian leaders  pressed  for  a  Bill of  Rights  in  the  proposed Constitution  Act, in order to bind the administration  with certain  declarations  of  individual  rights.   This   was, however,  rejected  by  the  Simon  Commission  with   these observations: "  We are aware that such provisions have been  inserted  in

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many Constitutions, notably in those of the European  States formed  after the War.  Experience, however, has  not  shown them   to  be  of  any  great  practical  value.    Abstract declarations  are  useless unless there exist the  will  and means to make them effective." The  framers  of  our  Constitution  however  followed   the American  view represented by the famous words of  Jefferson in preference to that expressed by the Simon Commission :- "  The  inconveniences of the declaration are, that  it  may cramp  government in its useful exertions.  But the evil  of this   is   short-lived,  moderate   and   reparable.    The inconveniences  of the want of a declaration are  permanent, afflictive   and   irreparable.   They   are   in   constant progression  from  bad  to  worse.   The  executive  in  our governments  is not the sole, it is scarcely  the  principal object  of my jealousy.  The tyranny of the legislatures  is the most formidable dread................... 559 (Vide  Basu’s Commentary on the Constitution of India,  Vol. 1, p. 74). and  incorporated the fundamental rights in Part III of  our Constitution. The object sought to be achieved was as the preamble to  the Constitution  states  "  to secure  to  all  its  -citizens: JUSTICE, social, economic and political; -]LIBERTY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of  the Nation and Art. 13 provided:- "  13.  (1)  All laws in force in  the  territory  of  India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of  this Part, shall, to the extent of such inconsistency, be void. (2)  The  State shall not make any law which takes  away  or abridges the rights conferred by this Part and any law  made in contravention of this clause shall, to the extent of  the contravention, be void........... " Laws in force " were defined in Art. 13(3) to include : "  Laws passed or made by a Legislature or  other  competent authority in the territory of India before the  commencement of   this   Constitution  and   not   previously   repealed, notwithstanding  that any such law or any part  thereof  may not  be  then in operation either at all  or  in  particular areas " and  they  were  declared  void, in  so  far  as  they  were inconsistent with the provisions of this Part, to the extent of such inconsistency.  As regards laws to be enacted  after the  commencement  of the Constitution, the  State,  in  the wider significance of the term as including " the Government and   Parliament  of  India  and  the  Government  and   the legislature  of  each of the States and all local  or  other authorities  within  the  territory of India  or  under  the control  of  the Government of India " (Vide  Art.  12)  was enjoined  not to make any law which takes away  or  abridges the rights conferred by this Part and ’any law made in  con- travention of this clause was to the extent of the 560 contravention  declared  void.   It will be  seen  that  the prohibition  was  thus effective both against past  laws  as well as future laws and both were equally void in so far  as they -were " inconsistent with " or " in derogation of " the fundamental   rights   enshrined   in  Part   III   of   the Constitution. no distinction was made between the past  laws and future laws in this respect and they were declared  void to  the  extent of the inconsistency or the  extent  of  the contravention a,,; the case may be, leaving the  unoffending

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parts thereof untouched. It will be also seen that under Art. 13(2) an admonition was administered  to the State not to enact any law which  takes away  or abridges the rights conferred by this Part and  the obligation thus imposed on the State enured for the  benefit of  all  citizens  of Bharat alike in  respect  of  all  the fundamental rights enacted in Part III of the  Constitution. No  distinction  was made in terms between  the  fundamental rights  said  to have been enacted for the  benefit  of  the individual  and those enacted in the public interest  or  on grounds of public policy. The question then arises whether a breach of the  obligation thus  imposed on the State can be waived by a  citizen.   To borrow the words of My Lord the Chief Justice " In the  face of   such   unequivocal  admonition  administered   by   the Constitution,  which is the supreme law of the land,  is  it open  to  the State to disobey  the  Constitutional  mandate merely because a citizen told the State that it may do so  ? if  the Constitution asks the State as to why the State  did not  carry  out its behest, will it be any  answer  for  the State to make that " True, you directed me not to take  away or  abridge  the  rights conferred by this  Part,  but  this citizen said that I could do so, for he had no objection  to my doing so." I do not think the State will be in any better position than the position in which Ad-am found himself when God asked him as to why he had eaten the forbidden fruit and the  State’s above answer will be as futile as that of  Adam who pleaded that the woman had tempted him and Bo he ate the forbidden  fruit."  It is absolutely clear on a  perusal  of Art.  13(2) of the Constitution that it is a  constitutional mandate 561, to  the  State  ’and no citizen can by any  act  or  conduct relieve the State of the solemn obligation imposed on it  by Art. 13(2) and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and  those enacted in the public interest or on  grounds  of public policy. What  then  is the basis of this distinction  which  has  be strenuously   urged  before  us  that  there   are   certain fundamental  rights which are enacted only for  the  private benefit of a citizen, e.g., rights of property, which can be waived by him and there are other fundamental rights enacted for the public good or as a matter of public policy which it would not be open to a citizen to waive even though he  were affected by the breach thereof.  Reliance is placed in  this behalf  on  certain decisions of the Supreme  Court  of  the United  States of America, passages from Willoughby,  Willis and   Rottschaeffer,  quoted  in  the  judgment  of  T.   L. Venkatarama  Aiyar, J., in Behram Khurshed Pesikaka  v.  The State of Bombay (1) and the observations of the said learned Judge in that case adopting the said distinction. (Vide  pp. 638-643 of the Report).  I am afraid this distinction cannot be  accepted.  There is nothing in the terms of the  various articles embodying the fundamental rights in Part III of our Constitution   which  warrants  such  a  distinction.    The fundamental  rights  are  enacted  with  all  precision  and wherever  limitations on their exercise are thought of  they are also similarly enacted.  Such constitutional limitations are to be found within the terms of the articles  themselves and  there is no justification for reading in the  terms  of the  articles  anything more than what is  expressly  stated therein.   There  is further this  distinction  between  the American  Constitution  and ours that whereas  the  American Constitution  was  merely enacted in order to  form  a  more

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perfect   union,   establish   justice,   insure    domestic tranquillity,  provide  for  common  defence,  promote   the general welfare and secure the blessings of liberty and  was an outline of government and nothing more, our  Constitution was (1)  [1955] 1 S.C.R. 613. 71    562 enacted  to  secure  to  all  citizens,  justice,  Liberty.’ Equality  and  Fraternity and laid emphasis on  the  welfare state and contained more detailed provisions,, defining  the rights  and also laying down restrictions thereupon  in  the interest of the general welfare, etc. -As observed by  Wills in his Constitutional Law at p. 477:- "The  conflict between man and the state is as old as  human history.   For  this reason some compromise must  be  struck between private liberty and public authority.  There is some need  of  protecting personal liberty  against  governmental power  and  also some need of limiting personal  liberty  by governmental  power.   The ideal situation is  a  matter  of balancing  one against the other, or  adjusting  conflicting interests." " In the United States Constitution an attempt has been made to  strike  a proper balance between  personal  liberty  and social control through express limitations written into  the Constitution  and  interpreted  by  the  Supreme  Court,  by implied limitations created by the Supreme Court, and by the development of the governmental powers of regulation,  taxa- tion,  and eminent domain by the Supreme Court."  (Ibid  pp. 477-478), whereas our Constitution has expressly sought to strike  the balance between a written guarantee of individual rights and the collective interests of the community by making  express provisions  in that behalf in Part III of the  Constitution. (Vide Gopalan v. State of Madras) (1). Moreover in the matter of considering the statements of law made  by the text book writers in America and the  dicta  of the  judges  of  the  Supreme Court  there  in  the  various decisions  cited  before  us,  we  must  bear  in  mind  the following  admonition  of Patanjali Sastri, C.  J.,  in  the State of Travancore-Cochin v. The Bombay Co., Ltd. (2). " These clauses are widely different in language, scope  and purpose, and a varying body of doctrines (1) [1950] S.C.R. 88. (2) [1952] S.C.R.1112, 1120 and tests have grown around them interpreting, extending  or restricting,   from  time  to  time,  their  operation   and application  in  the  context  of  the  expanding   American commerce  and industry, and we are of opinion that not  much help  can  be  derived  from them in  the  solution  of  the problems arising under Art. 286  of the Indian Constitution" or   for  the  matter  of  that,  articles   embodying   the fundamental rights in Part III of our Constitution (see also The State of Bombay v. R. M. D. Chamarbaugwala(1) The  rights conferred on citizens may be thus  classified  : (i) statutory rights; (ii) constitutional rights; and  (iii) fundamental  rights.   One need not consider  the  statutory rights  in  this context but the constitutional  rights  are those  created and conferred by the Constitution.  They  may or  may not be waived by a. citizen, as stated in  the  text books  and the decisions of the Supreme Court of the  United States  of America above referred to.  But when  the  rights conferred  are  put  on a high pedestal and  are  given  the status  of fundamental rights, which though embodied in  the Constitution itself are in express terms distinguished  from

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the  other constitutional rights (e.g.,  fundamental  rights which are enshrined in Part III of the Constitution and  are enacted as immune from any legislation inconsistent with  or derogatory thereto and other constitutional rights which are enacted  in other provisions, for instance in Arts. 265  and 286  and  in  Part  XIII  of  the  Constitution),  they  are absolutely  inviolable  save  as expressly  enacted  in  the Constitution  and  cannot  be  waived  by  a  citizen.   The Constitution  adopted by our founding fathers is  sacrosanct and  it is not permissible to tinker with those  fundamental rights  by any ratiocination or analogy of the decisions  of the Supreme Court of the United States of America.  The only manner in which that can be done is by appropriate amendment of the Constitution and in no other manner whatever. There is no difficulty whatever in working out this position and to my mind the difficulties pointed out (1)  [1957] S.C.R. 874, 918. 564 are more imaginary than real.  If a citizen wanted to assert his fundamental right under the circumstances envisaged  for instance  in the judgment of my brother S. K. Das,  J.,  and made an application for a writ under Art. 32 or Art. 226  of the  Constitution he would be promptly confronted  with  the argument  that  the  Court should in  the  exercise  of  its discretion refuse him the relief prayed for.  The remedy  is purely  discretionary  and no Court in  those  circumstances would  exercise @ its discretion in his favour  (Vide  Dewan Bahadur Seth Gopal Das Mohta v. Union of India (1),  Baburao Narayan   Savas   v.  Union  of  India(2)   and   Laxmanappa Hoonmantappa Janakhandi v. Union of India (3).  Even then he might merely obtain a relief declaring the legislation ultra vires the Constitution and the Court would not grant him any consequential  relief  For  that relief  he  would  have  to approach  the regular courts of law, when all  questions  of law, apart from the mere constitutionality of the  provision would  be considered by the Court on a contest  between  the par. ties, e.g., estoppel, acquiescence, limitation and  the like (Compare our observations in Sales Tax Officer, Banaras v.  Kanayalal  Mukundlal Saraf (4) ). The only  thing  which parties  would be concluded by would be the adjudication  as to the ultra vire’s character of the measure in question and the  citizen  would not be entitled to  the  relief  claimed merely for the asking.  These considerations, therefore,  do not  militate  against the position that  a  citizen  cannot waive the fundamental rights conferred upon him by Part  III of the Constitution. I fully endorse the opinion expressed by Mahajan, C. J.,  in Behram Khursheed Pesikaka v. The State of Bombay (5) at page 653 :- ,,We  think that the rights described as fundamental  rights are  a  necessary  consequence of  the  declaration  in  the preamble that the people of India have solemnly resolved  to constitute -India into a (1)  [1955] I S.C.R. 773. (3)  [19551 1 S.C.R. 769. (2)  [1954] 26 I.T.R. 725. (4)  Civil  Appeal No. 87 Of 1957 decided on  September  23, 1958. (5)  [1955] 1 S. C. R. 613. 565 sovereign  democratic  republic  and to secure  to  all  its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality  of status  and of opportunity.  These fundamental  rights  have not  been  put  in the Constitution  merely  for  individual

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benefit,  though  ultimately  they come  into  operation  in considering individual rights.  They have been put there  as a  matter  of public policy and the doctrine of  waiver  can have  no  application to provisions of law which  have  been enacted as a, matter of constitutional policy." This,  in  my  opinion is the true position  and  it  cannot therefore  be urged that it is open to a citizen  to,  waive his  fundamental  rights  conferred  by  Part  III  of   the Constitution.   The  Supreme  Court is the  bulwark  of  the fundamental  rights  which  have been  for  the  first  time enacted in the Constitution and it would be a, sacrilege  to whittle  down  those rights in the manner  attempted  to  be done. The  result  is however the same and  agree with  the  order proposed by My Lord the Chief Justice. S.   K.  DAS J.-This is an appeal by special leave  from  an order dated January 29, 1958, passed by the Commissioner  of Income-tax,   Delhi,   respondent  no.  1  before   us,   in circumstances  which  are somewhat unusual and  out  of  the ordinary.   We shall presently relate  those  circumstances; but  at the very outset it may be stated that two  questions of  far-reaching importance fall for consideration  in  this appeal.   One is the validity of a settlement made under  s. 8A of the Taxation on Income (Investigation Commission) Act, 1947 (30 of 1947) hereinafter referred to as the Act,  after the  coming  into force of the Constitution on  January  26, 1950, and the second is if a fundamental right guaranteed by the  Constitution  can be said to have been  waived  by  the appellant in the circumstanoes of this case. ’The  appellant before us is Basheshar Nath, whom  we  shall hereafter call the assessee.  As we have already stated, the Commissioner of Income-tax, Delhi, is the first  respondent, The second respondent 566 is  the Union of India.  We also allowed the Model  Knitting Industries, a limited liability Company with its  registered office  in  Calcutta,  to intervene in the  appeal,  on  the ground  that the intervening Company has a case  pending  in the  High Court of Calcutta where the same questions are  in issue.  We have also heard the intervener in support of  the appeal. On  behalf of the appellant it has been’ contended that  the Commissioner of Income-tax, Delhi, is a tribunal within  the meaning  of  Art,  136 of  the  Constitution  and  exercised judicial  functions  when it passed the  impugned  order  of January  29,  1958.  The respondents pointed  out,  however, that  the  so-called  order was nothing but  a  reply  which respondent no.  1 gave to a communication received, from the assessee.  However, the respondents have waived any prelimi- nary objection to the maintainability of the present appeal, and   the  learned  Attorney  General  appearing   for   the respondents has frankly stated before us that he is  raising no  such preliminary objection, as the Union  Government  is equally  anxious  to have a decision on the  question,  very important  from  its  point of view  and  with  far-reaching financial  consequences,  as to whether  a  settlement  made under  s.  8A  of the Act after January 26,  1950,  and  the orders passed thereon by the Union Government are valid.  We have,  therefore, proceeded on the footing that the  present appeal  is competent, and have considered it unnecessary  to decide  in the abstract the more general question as to  the circumstances in which an order made by a revenue  authority like   the  Commissioner  of  Income-tax  partakes  of   the character of A judicial or quasi-judicial order. Now,  for the facts and circumstances which have led  up  to

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this  appeal.  The Act received the assent of the  Governor- General  on  April 18, 1947, and came into force on  May  1, 1947.   On  July  22, 1948, the case  of  the  assessee  was referred  to the Investigation Commission, constitued  under s.  3 of the Act.  The reference was made under s.  5(1)  of the  Act,  and it ,stated that the  Central  Government  had prima  facie reasons for believing that the assessee  either alone or                     567 in  combination  with’  other  persons  evaded  payment   of taxation  on income to a substantial extent,  and  therefore the  case  of  the asseesee was sent  to  the  Investigation Commission  for  investigation and report.   The  period  of investigation was from April 1, 1939 to March 31, 1947.  The report  of the Investigation Commission which has been  made available to us shows that the case against the assessee was that he carried on a business of supplying tents,  executing contract works, and commission agency for some textile mills on  a  fairly  extensive scale,  both  individually  and  in partnership  With  his brother.  It appears that  the  total wealth  statement of the assessee was filed on November  10, 1948, and was forwarded to an authorised official  appointed under  s. 6(3) of the Act.  From January 8, 1949 to  October 14,  1949  the  authorized  official  was  engaged  in   the collection  of assessment records of the assessee  from  the income-tax  authorities  and  of materials  from  the  Civil Supplies  Directorate.   On July 5, 1949, the  total  wealth statement was received back from the assessee and the order- ,sheet  shows  that  on May 26, 1950, (that  is,  after  the coming  into  force  of  the  Constitution)  the  authorised official is-sued a notice to the assessee fixing the hearing for June 10, 1950.  The assessee then asked for time, and it appears  that for a period of about three years  till  June, 1953, nothing was done.  Thereafter, the authorised official held a preliminary investigation and computed intially  that the  undisclosed income ,of the assessee for the  period  in question   was  Rs.  12,07,000;  on  further  scrutiny   and examination  of  accounts and after heating  the  assessee’s explanation,  the authorised official reduced the amount  in his  final  report, submitted sometime towards  the  end  of 1953,   to  Rs.  9,56,345.   The  Investigation   Commission considered the report of the authorised official, heard  the assessee,  and came to the conclusion that the total  amount to  be  assessed  in  the hands  of  the  assessee  was  Rs’ 4,47,915.    In  their  report  dated  May  24,   1954   the Investigation Commission said: "   During the course of the hearing before us,the  assessee as well as his Auditors applied for a 568 settlement after admitting liability for the aforesaid  sum. In  the  circumstances, we consider it proper to  allow  the assessee   the  benefit  of  a  settlement  on   the   lower concessional basis of 75% of evaded income payable by way of tax and a moderate penalty of Rs, 14,064....... The assessee accepting our findings both as regards the amount of  income that  escaped assessment and the amount of tax  and  penalty payable, offered a settlement.  In the circumstances, we re- commend  the acceptance by the Government of the  assessee’s offer of a settlement." The  Central Government accepted the settlement under s.  8A of  the  Act and on July 5, 1954, passed an order  under  s. 8A(2) directing the issue of a demand notice by the  Income- tax  Officer concerned for a sum of Rs. 3,50,000  (including the  penalty  of  Rs. 14,064) on the  assessee  and  further directing that " all such other proceedings under the Indian

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Income-tax Act or under any other law, as may be  necessary, should be taken with a view to enforcing the payment of  the demand  and the terms and conditions of settlement."  Though under the terms of settlement no instalments were given,  it appears  that the assessee was allowed to pay the amount  at the rate of Rs. 5,000 per month.  It further appears that up to and including September 8, 1957, the assessee had paid in all a sum of Rs. 1,28,000 towards the demand.  In  December, 1955 was given the decision of this Court in M. CT.  Muthiah v. The Commissioner of Income tax, Madras (1), in which  the majority  of Judges held that s. 5(1) of the Act  was  ultra vires  the  Constitution,  as  it  was  discriminatory   and violative of the fundamental right guaranteed by Art. 14  of the Constitution by reason of two amendments which were made in  s. 34 of the Indian Income-tax Act 1922-one in  1948  by the  enactment of the Income. tax and Business  Profits  Tax (Amendment) Act, 1948 (48 of 1948) and the other in 1954  by the enactment of the Indian Income-tax (Amendment) Act, 1954 (33  of  1954).  Sometime earlier than the  aforesaid  deci- sion, the Income-tax Officer concerned had sent a (1)  [1955] 2 S.C.R. 1247,                     569 recovery  certificate to the Collector, New Delhi,  and  the assessee  stated that in execution of the  said  certificate his  properties  situated  in  Dharamsala  and  Hissar  were attached.   On  December  27, 1957,  the  assessee  filed  a petition  to  the Income-tax Commissioner, Delhi,  in  which after stating the relevant facts, the assessee claimed that, after  the  decision in Muthiah’s case (1),  the  settlement made under s. 8A of the Act had no force and was not binding on   him:  the  assessee  then  prayed  that  the   attached properties  should  be  released  from  attachment  and  the amounts recovered under the terms of settlement refunded  to him.   On January 29, 1958, the Commissioner  of  Income-tax sent the following reply- "  With reference to your petition dated 27th December  1957 regarding  the settlement arrived at under section 8A(2)  of the Taxation on Income (Investigation Commission) Act, 1947, 1 am to inform you that the settlement is valid and  binding on you. 2.   You are’ therefore, requested to make good the  arrears of  instalments  which  you have not paid  recently  by  5th February,  1958 and also to continue making the payments  in accordance  with the instalments’ scheme agreed to,  failing which  the recovery proceedings will be  vigorously  pursued through the usual recovery channels." The assessee asked for and obtained special leave from  this Court  on  February 17, 1958, to appeal from  the  aforesaid order.  In the appeal as orginally filed in pursuance of the special  leave granted to the assessee, the  prayer  portion was  inadvertently  left out.   Subsequently,  the  assessee prayed  that-(a) the report of the Investigation  Commission dated  May 24, 1954, be quashed, (b) the settlement made  on the  basis  of the report and the directions  given  by  the Central Government in pursuance thereof and the  proceedings for  recovery of arrears of tax be all quashed, and (c)  the amounts  already  recovered may be ordered to  be  refunded. With  regard to the last prayer, we may state here  that  it was not pressed before us and we are relieved from the task, at least in this appeal, of (1)  [1955] 2 S.C.R. 1247. 72 570 deciding in what circumstances and on what considerations  a refund of tax voluntarily paid can be claimed.

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Therefore, the first and foremost question before us is  the validity  of the settlement made under S. 8A of  ,-the  Act. On behalf of the assessee the main argument is that s.  5(1) of  the Act having been held ultra vires  the  Constitution, the  very  foundation for the report  of  the  Investigation Commission has disappeared and a settlement based thereon is neither  valid,  nor can it be enforced.  On behalf  of  the respondents, the learned Attorney General has contended that there  is no decision of this Court which has held  that  s. 5(1) of the Act is wholly void and on a proper  construction of  the various sections of the Act, it will be  found  that there   are   two  separate  and  distinct   procedures   or jurisdictions which the Investigation Commission may  follow or  exercise: one is investigation and the other relates  to settlement.    He  has  submitted  that   the   jurisdiction conferred on the Investigation Commission under s. 8A, which was inserted in the Act in 1949 by s. 33 of Act 67 of  1949, is  not affected by the decision in Muthiah’s case (1),  and if   the  Investigation  Commission  had   jurisdiction   to entertain  an application from the assessee for  settlement, approve of the same, and refer it to the Central Government, the  latter  had also jurisdiction to accept it  under  sub- s.(1) and make necessary orders under sub.s. (2) of s. 8A.In short, the argument of the learned Attorney General is  that there is nothing in Muthiah’s decision (1), which renders s. 8A constitutionally invalid. It  is  necessary  to  read  at  this  stage  the   relevant provisions  of  the  Act in so far as  they  bear  upon  the problems  before  us.  We have said that the Act  came  into force on May 1, 1947.  This was before the coming into force of  the  Constitution  of  India, and  no  question  of  the violation  of  any  fundamental  rights  guaranteed  by  the Constitution  arose  on  that date.  Section 3  of  the  Act empowers  the Central Government (now Union  Government)  to constitute   a  Commission  to  be  called  the   Income-tax Investigation (1)  [1955] 2 S. C. R. 1247. 571 Commission, whose duties shall be (to quote the words of the section)- "  (a) to investigate and report to the Central  Government on  all  matters  relating  to  taxation  on  income,   with particular reference to the extent to which the existing law relating   to,  and  procedure  for,  the’  assessment   and collection  of  such  taxation is adequate  to  prevent  the evasion thereof ; (b)to investigate in accordance with the provisions of  this Act any case or point in a case referred to it  undersection 5 and make a report thereon (including such interim  reports as  the Commission may think fit) to the Central  Government in respect of all or any of the assessments made in relation to the case before the date of its report or interim report, as the case may be." We  are  concerned  in  this appeal with  the  duty  of  the Commission  referred to in s. 3(b) above.  Section  4  deals with the composition of the Commission, details whereof  are unnecessary  for our purpose, Sub-sections (1), (2) and  (4) of  s. 5 are relevant to the problems before us and must  be read : "  5(1).  The Central Government may at any time before  the 1st  day  of  September 1948 refer  to  the  Commission  for investigation  and  report any case or points in a  case  in which  the  Central Government has prima facie  reasons  for believing that a -person has to a substantial extent  evaded payment  of taxation on income, together with such  material

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as  may be available in support of such belief, and  may  at any time before the 1st day of September, 1948 apply to  the Commission  for  the withdrawal of any case or points  in  a case  thus referred, and if the Commission approves  of  the withdrawal, no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn. (2)  The  Commission  may,  after  examining  the   material submitted  by the Central Government with reference  to  any case or points in a case and making such investigation as it considers  necessary, report to the Central Government  that in its opinion further investigation is not likely to reveal any substantial 572 evasion of taxation on income and on such report being  made the investigation shall be deemed to be closed. (3)........................................................ (4)  If  in  the course of investigation into  any  case  or points  in a case referred to it under sub-section (1),  the Commission has reason to believe- (a)that  some  person other than the person  whose  case  is being investigated has evaded payment of taxation on income, or (b)  that some points other than those referred to it by the Central  Government  in  respect of any  case  also  require investigation, it  may make a report to the Central Government stating  its reasons for such belief and, on receipt of such report,  the Central Government shall, notwithstanding anything contained in  sub-section (1), forthwith refer to the  Commission  for investigation  the  case  of  such  other  person  or   such additional points as may be indicated in that report." Section 5 as originally enacted mentioned the date, 30th  of June, 1948, but by Act 49 of 1948 the date substituted was " 1st day of September, 1948 ". Section 6 states the powers of the Commission, and they may be summarised thus: (a)  the  Commission  has  power to require  any  person  or banking  or  other Company to give information  on  relevant points; (b)  it has power to administer oaths and all the powers  of a  civil court to take evidence, enforce the  attendance  of witnesses etc; (c)  it  has power to impound and retain a document  in  its custody; (d)it  has  power to ask an authorised official  to  examine accounts and interrogate any person; (e)  it  has  power  to give  directions  to  an  authorised official; (f)  it has power to close the investigation and make a best of judgment assessment in respect of a person who refuses or fails  to  attend  in person to  give  evidence  or  produce documents etc; and                     573 (g)  it  has  power  of  seizure,  search  etc.  in  certain specified circumstances. Sections 6A and 6B deal with the power of the Commission  to tender  immunity  from  prosecution  and  to  withdraw  such tender.   Section 7 states the procedure to be  followed  by the Commission, sub-ss. (2), (4) and (6)     whereof    need only be referred to here: "  7(2)  In  making an investigation  under  clause  (b)  of section  3, the Commission shall act in accordance with  the principles  of  natural  justice, shall  follow  as  far  as practicable the principles of the Indian Evidence Act,  1872 (1  of 1872), and shall give the person whose case is  being

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investigated  a  reasonable  opportunity  of  rebutting  any evidence   adduced  against  him;  and  the  power  of   the Commission  to compel production of documents shall  not  be subject  to  the limitation imposed by section  130  of  the Indian  Evidence Act, 1872 (1 of 1872), and  the  Commission shall  be  deemed to be a court and  its  proceedings  legal proceedings  for  the  purpose of sections 5 and  6  of  the Bankers’ Books Evidence Act, 1891 (XVIII of 1891). (3)......................................................... (4)  No  person shall be entitled to inspect, call  for,  or obtain  copies  of, any documents, statements or  papers  or materials  furnished to, obtained by or produced before  the Commission  or  any authorised official in  any  proceedings under this Act; but the Commission, and after the Commission has ceased to exist such authority as the Central Government may  in this behalf appoint, may, in its  discretion,  allow such inspection and furnish such copies to any person: Provided that, for the purpose of enabling the person  whose case or points in whose case is or are being investigated to rebut  any  evidence brought on the record against  him,  he shall, on application made in this behalf and on payment  of such fees as may be prescribed by Rules made under this Act, be furnished with certified copies of documents, statements, papers  and materials brought on the record by  the  Commis- Sion. (5)......................................................... 574 (6)  In any proceedings under this Act, the Commission  may, in  its  discretion,  admit in evidence  and  act  upon  any document  notwithstanding  that it is not  duly  stamped  or registered." Section 8 states in effect what the Commission shall do   on the  conclusion  of the investigation: it  states  that  the materials  brought on the record shall be considered by  all the members, and the report shall be in accordance with  the opinion  of the majority.  Subsection (2) of s. 8 gives  the Central  Government power to direct reopening of  assessment proceedings  on the report of the  Commission.   Sub-section (4)   states   that  in  the  assessment   or   reassessment proceedings  in pursuance of a direction given under  sub-s. (2), the findings recorded by the Commission shall be final, subject  to  the provisions of sub-ss. (5)  and  (6).   Then comes s. 8A which must be quoted in full: "S. 8A(1) Where any person concerned in any case referred to or  pending before the Commission for investigation  applies to  the Commission at any time during such investigation  to have  the case or any part thereof settled in so far  as  it relates  to him, the Commission shall, if it is  of  opinion that   the  terms  of  the  settlement  contained   in   the application may be approved, refer the matter to the Central Government, and if the Central Government accepts the  terms of  such  settlement, the Commission shall  have  the  terms thereof recorded and thereupon the investigation, in so  far as  it relates to matters covered by such settlement,  shall be deemed to be closed. (2)  For   the  purpose  of  enforcing  the  terms  of   any settlement  arrived at in pursuance of subsection  (1),  the Central  Government may direct that such proceedings as  may be appropriate under the Indian Income-tax Act, 1922 (XI  of 1922), the Excess Profits Tax Act, 1940 (XV of 1940) or  any other  law  may  be taken against the  person  to  whom  the settlement  relates, and, in particular, the  provisions  of the  second  proviso to clause. (a) of  sub-section  (5)  of section  23, section 24B, the proviso to sub-section (2)  of section  25A, the proviso to sub-section (2) of  section  26

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and -sections 44 and 46 of the Indian Income-tax Act, 1922 575 shall be applicable to the recovery of any sum specified in such   settlement   by   the   Income-tax   Officer   having jurisdiction  to  assess  the person by  whom  such  sum  is payable as if it were income-tax or an arrear of  income-tax within the meaning of those provisions. (3)  Subject to the provisions of subsection (6) of  section 8,  any  settlement arrived at under this section  shall  be conclusive  as to the matters stated therein, and no  person whose  case has been so settled shall be entitled to  reopen in  any  proceeding for the recovery of any sum  under  this section  or  in any subsequent assesssment  or  reassessment proceeding  relating to taxation on income or in  any  other proceeding  before any court or other authority  any  matter which forms part of such settlement. (4)  Where  a  settlement has been  accepted  by  Government under  sub-section (1), no proceedings under section  34  of the  Indian  Income-tax  Act, 1922 (XI of  1922),  or  under section 15 of the Excess Profits Tax Act, 1940 (XV of 1940), shall be initiated in respect of the items of income covered by the settlement unless the initiation of such  proceedings is expressly allowed by the terms of the settlement." Section  9  bars the jurisdiction of courts, but it  is  not disputed that if any of the provisions of the Act are  ultra vires  the Constitution, s. 9 will neither cure  the  defect nor stand in the way of the assessee.  Section 10, the  last section, gives the Central Government power to make rules. The  above  recital  gives a brief conspectus  of  the  main provisions  of the Act.  It is necessary now to refer  to  a few  earlier decisions of this Court with regard to some  of these  provisions.   The earliest in point of  time  is  the decision  in  Suraj Mall Mohta and Co. v. A.  V.  Viswanatha Sastri where sub-s. (4) of S. 5 of the Act and the procedure prescribed  by the Act in so far as it affected the  persons proceeded  against under that sub-section, were held  to  be discriminatory  and  therefore void and  unenforceable.   No opinion  was, however, expressed on the validity of s.  5(1) of the Act. (1)  [1955] 1 S.C.R. 448. 576 In  Shree  Meenakshi  Mills  Ltd.,  Madurai  v.  Sri  A.  V. Viswanatha  Sastri  (1), it was held that after  the  coming into  force  on  July 17, 1954,  of  the  Indian  Income-tax (Amendment)  Act, 1954, (33 of 1954) which operated  on  the same  field as s. 5(1) of the Act, the provisions  of  s.  5 (1) became void and unenforceable as being discriminatory in character.   It was further held that when an Act was  valid in  its entirety before the date of the  Constitution,  that part  of the proceedings regulated by the special  procedure and  taken during the pre-Constitution period could  not  be questioned  how. ever discriminator it might have been,  but the  discriminatory procedure could not be  continued  after the  coming  into force of the Constitution.  In  that  case (Meenakshi Mills’ case(1)) the Investigation Commission  had not even commenced the proceedings though a period of  seven years had elapsed and the investigation was pending when the writ  petitions were filed.  In those circumstances  it  was held   that   the  proceedings  before   the   Investigation Commission  which had become discriminatory could no  longer be continued.  Then came the decision in M. CT.  Muthiah  v. The,  Commissioner  of  Income-tax,  Madras(2).   The  facts relevant  to  that  decision  were  that  the  Investigation Commission held an enquiry into three cases and submitted  a report  on August 26, 1952, finding a particular sum  to  be

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the undisclosed income during the investigation period.  The Central  Government accepted the report and passed an  order under  s.  8(2) of the Act on September 16,  1952.   Notices under  s. 34 of the Indian Income-tax Act were  then  issued and  reassessments  except  for one year were  made  on  the findings of the Commission, which were treated as final  and conclusive.   The  re-assessment orders were served  on  the assessees  in February and May 1954.  On December  6,  1954, the  assessees  filed their writ petitions  challenging  the constitutionality  of S. 5 (1) of the Act.  It was  held  by the majority that s. 5 (1) was discriminatory and  violative of  the  fundamental right guaranteed under Art. 14  of  the Constitution,  because s. 34 of the Indian  Income-tax  Act, 1922 as (1) [1955] 1 S.C.R. 787. (2) [1955] 2 S.C.R. 1247. 577 amended  in  1948 operated on the same field  and  from  and after  January 26, 1950, it included the strip of  territory which  was also occupied by s. 5 (1) and  two  substantially different  laws of procedure, one more , prejudicial to  the assessee than the other, could not be allowed to operate  on the same field in view of the , guarantee of Art. 14 of  the Constitution.  In the result it was held that barring  those cases  which were already concluded by reports made  by  the Commission and directions given by Government before January 26, 1950, the cases which were pending before the commission for   investigation  as  also  assessment  or   reassessment proceedings which were pending on January 26, 1950, were hit by Art. 14.  The -assessment orders were accordingly quashed as being unconstitutional. Now, we come back to the problems before us: (1) what is the effect of Muthia’s decision(1) in the present ease, and  (2) does  the  Act contemplate two separate  and  distinct,  but severable,  procedures  or jurisdictions  -one  relating  to investigation and the other to settlement, so that the  vice of  discrimination  (if any) attaches to  the  investigation procedure only and not to the other ? We  do not see how the learned Attorney General  can  escape from  the  position  that Muthia’s  decision  (1)  holds  in express terms that s. 5 (1) of the Act was hit by Art. 14 of the  Constitution on and after January 26, 1950.  The  ratio of the decision was thus explained in the majority  judgment at page 1260, 1261:- "  After the 8th September, 1948, there were two  procedures simultaneously  in operation, the one under Act XXX of  1947 and the other under the Indian Income tax Act with reference to persons who fell within the same class or category, viz., that  of the substantial evaders of income-tax.   After  the 8th September, 1948, therefore, some persons who fell within the  class of substantial evaders of income-tax  were  dealt with  under  the drastic and  summary  procedure  prescribed under Act XXX of 1947, while other (1)  [1955] 2 S.C.R. 1247. 73 578 persons  who  fell  within the  same  class  of  substantial evaders  of  income-tax  could  be  dealt  with  under   the procedure  prescribed  in the Indian  Income-tax  Act  after service of notice upon them under the amended section 34 (1) of  the  Act.  Different persons, though falling  under  the same class or category of substantial evaders of income-tax, would, therefore, be subject to different procedures, one  a summary  and  drastic  procedure  and  the  other  a  normal procedure  which gave to the assessees various rights  which

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were  denied to those who were specially treated  under  the procedure prescribed in Act XXX of 1947. The  legislative competence being there,  these  provisions, though discriminatory, could not have been challenged before the   advent  of  the  Constitution.   When,  however,   the Constitution came into force on the 26th January, 1950,  the citizens  obtained the fundamental rights enshrined in  Part III  of the Constitution including the right to equality  of laws  and  equal protection of laws enacted  in  article  14 thereof,  and  whatever may have been  the  position  before January  26,  1950, it was open to the  persons  alleged  to belong to the class of substantial evaders thereafter to ask as  to  why some of them were subjected to the  summary  and drastic  procedure prescribed in Act XXX of 1947 and  others were subjected to the normal procedure prescribed in section 34  and the cognate sections of the Indian  Income-tax  Act, the procedure prescribed in Act XXX of 1947 being  obviously discriminatory and, therefore, violative of the  fundamental right guaranteed under article 14 of the Constitution." That ratio is equally applicable in the present case, and if s. 5(1) of the Act is unenforceable after January 26,  1950, the reference made thereunder against the assessee must also fall after that date and with it must go overboard all  that was done under the drastic and summary procedure  prescribed under the Act after January 26,1950.  Two possible arguments that  (1) substantial evaders whose s were referred  by  the Central Government for investigation by the Commission                     579 before  September 1, 1948, formed a class by themselves  and (2)  that proceedings having started before  the  Commission under a reference valid at the time when it was made  cannot be  affected by any subsequent amendment of  the  Income-tax Art,  1922,  were  raised, but not accepted  in  Suraj  Mall Mohta’s  Meenakshi  Mills’  or Muthia’s case  (1)  (2)  (3). There  has  been some argument before us as to how  the  two procedures-one  prescribed under the Income-tax  Act,  1922, and  the other under the Act-compare and contrast with  each other;  but  this is a point which was  canvassed  at  great length  in  each of the three cases mentioned  above.   This Court   found  in  unequivocal  terms  that  the   procedure prescribed  under the Act was more summary and drastic,  and in  Suraj  Mall  Mohta’s case  the  substantial  differences between the two procedures were summarised at pp. 463-466 of the  report.   We do not propose to cover  the  same  ground again, but cop-tent ourselves with drawing attention to what was  pointedly said in Suraj Mall Mohta’s case namely,  that it  was conceded on behalf of Government that the  procedure prescribed by the impugned Act in ss. 6 and 7, which we have read earlier, was more drastic than the procedure prescribed in  ss.  37  and 38 of the Indian Income-tax  Act.   It  was stated   therein  that  though  in  the  first   stages   of investigation  there  was some similarity  between  the  two procedures, the overall picture was not the same. The learned Attorney General has not seriously contested the correctness  of this position, but has argued that  what  we are  concerned  with  in the present case is  not  the  mere possibility  of a differential treatment, but what  actually was  done  by  the Commission in the  case  of  the  present assessee after January 26, 1950.  He has submitted that  the assessee was not subjected to any differential treatment  in fact,  and has invoked to his aid the ratio of our  decision in Syed Qasim Razvi v. The State of Hyderabad (4), where the majority  judgment laid down the following tests: in a  case where part of the trial cannot be challenged as (1) [1955] 1S.C.R.448

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(2) [1955] 1 S.C.R. 787. (3)  [1955) 2 S.C.R. 1247. (4)  [1953] S.C.R. 589. 580 bad, it is incumbent on the court to consider, first whether the  discriminatory provisions of the law can  be  separated from  the  rest  and even without them  a  fair  measure  of equality  in  the matter of procedure can  be  secured,  and secondly,  whether the procedure -actually followed ’did  or did  not, proceed upon the discriminatory provisions and  it was  stated  that a; mere threat or possibility  of  unequal treatment  was not sufficient to invalidate  the  subsequent proceedings.   A  reference was there made  to  the  earlier decisions,  of this Court in Keshavan Madhava Xenon  v.  The State  of Bombay (1), and Lachmandas Kewalram Ahuja  v.  The State  of Bombay (2 ), and the decision in  Lachmandas  case (supra), again a majority decision, was distinguished on two grounds: first, the question as to whether after eliminating the  discriminatory  provisions  it was  still  possible  to secure a fair measure of equality with the normal  procedure was neither raised nor considered ; secondly, it was assumed that  it was not possible to proceed with the trial  without following the discriminatory procedure and as that procedure became  void on the coming into force of  the  Constitution, the jurisdiction to proceed under that procedure came to  an end.  Applying the tests laid down in the majority  decision of Syed Qasim Razvi’s case (3), the learned Attorney General has  contended that in the present case  the  discriminatory provisions  can be separated from the rest of the  Act,  and the assessee was not in fact subjected to any discriminatory procedure.   He has sought to distinguish Muthia’s  case  on the same ground, viz., that the re-assessments made in  that case were actually based on a discriminatory procedure. In our view the ratio of the majority decision in Syed Qasim Razvi’s  case (3) has no application in the case  under  our consideration,  and the principle which applies is what  was laid down in Lachmandas’s case (2). The majority decision is Syed  Qasim Razvi’s case proceeded on the finding (to  quote the  words  of  Mukherjea, J., who  delivered  the  majority judgment)  that " although there were deviations in  certain particulars, (1) [1951] S. C. R. 228.           (2) [1952] S. C. R. 71O. (.3) [1953] S. C. R. 589.                     581 the  accused  had  substantially the  benefit  of  a  normal trial".   The minority judgments, however, very  pertinently pointed  out  that  the discriminatory  provisions  were  an integral  part  of the Regulation under  which  the  accused person in that case was tried and in fact the discriminatory provisions were applied.  Bose, J. (as he then was expressed the  view  (at p. 618) " that in testing the validity  of  a law,  it is irrelevant to consider what has been done  under it,  for  a  law is either constitutional  or  not  and  the validity  or  otherwise  cannot depend upon  what  has  been accomplished under its provisions." It  is,  we think, unnecessary to go  into  the  controversy which arises out -of the two views expressed above.  For the present  case,  it  is  sufficient  to  say  that  (1)   the discriminatory  provisions  are  an  integral  part  of  the procedure prescribed under the Act which cannot be separated from  the  rest; and (2) we are satisfied  that  the  report which  led to the settlement was made by  the  Investigation Commission  in  pursuance of and as a direct result  of  the discriminatory  procedure  which it followed.   Indeed,  the Investigation  Commission  followed the  only  procedure  of

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investigation prescribed under the Act, which was a  drastic and summary procedure, and if that procedure became void  on the coming into force of the Constitution, the  jurisdiction of  the Investigation Commission practically came to an  end (see Lachmandas’s case, supra). It  is  necessary to explain here why we cannot  accept  the contention  of the learned Attorney General that  there  are two procedures or two jurisdictions under the Act.  What  in substance is the effect of the provisions of the Act, in  so far as they relate to the Commission’s duty under s. 3  (b)? The  Commission  receives a reference under s. 5 (1)  if  it does  not proceed under s. 5 (2), it exercises such  of  its powers  under  s.  6 as it  considers  necessary.   It  then follows  the  procedure laid down in s. 7  and  submits  its report  under s. 8. On that report, the  Central  Government takes  action  under s. 8 (2).  If,  however,  the  assessee applies  for settlement, even then the Commission  has  the, duty to report to Government if the terms of settlement are 582 approved  by it.  To fulfil this duty, the  Commission  must get the materials by exercising its powers under s. 6 and by following  the procedure laid down in s. 7. That is  exactly what  was done in the present case.  An authorised  official was  asked to examine the accounts etc. under s. 6 (3).   He examined  the  accounts and submitted an interim  report  in 1953.   He followed the procedure laid down in the Act  with regard to inspection of documents, examination of  witnesses etc.  He then submitted a final report.  The Commission then heard the assesee on May 19, 1954, and reserved orders.   On May 20, 1954, after the assessee knew what the final finding of  the Commission was going to be, he filed an  application for  settlement.  The Commission made its final report  four days  after.   It  is difficult to  understand  how  in  the circumstances  stated  above,  it  can  be  said  that   the Commission  followed a non-discriminatory procedure or  that it  had two jurisdictions-one relating to investigation  and the  other to settlement.  The jurisdiction was really  one, and  the  procedure followed also the same.  It  is  not  as though the Act provided a separate procedure for purposes of effecting  a  settlement;  nor  is  this  a  case  where   a settlement  has  been  made  without  applying  any  of  the provisions relating to investigation.  A full  investigation was  made, and after the assessee had been subjected to  the drastic  and  summary procedure under the Act, he  was  told what the result of the investigation was.  Then, he made  an application  for  settlement,  which  was  approved  by  the Commission under s. 8A. We  are  accordingly of the view that the  learned  Attorney General  has failed to make out his case that  (1)  Muthia’s decision (1) does not apply and (2) the settlement under  s. 8A of the Act is a legally valid settlement by reason of the severability   or  non-application  of  the   discriminatory procedure under the Act in the case of the assessee.. This  brings me to the second question, that of waiver of  a fundamental  right, which is as important as it is  complex. It is a question on which unfortunately we (1) [1955] 2 S.C.R.1247. 583 have  not been able to achieve unanimity.  It is beset  with this initial difficulty that the present appeal is not  from a  judgment  or order rendered after the trial  of  properly framed issues; it is from an order which merely rejected the prayer  of  the  assessee that his  properties  attached  in execution of the recovery certificate should be released and the amounts paid under the terms of the settlement refunded.

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The  question of waiver was neither raised, nor  tried;  and the  necessary facts were not ascertained or  determined  by the revenue authority concerned.  Unfortunately, the  filing of  a  statement  of  their case by  the  parties  was  also dispensed  with,  the  result  whereof  has  been  that  the question of waiver has been urged for the first time in  the course  of  arguments here.  We have,  however,  heard  full arguments  on  it,  and  proceed  to  consider  it  on  such materials as have been placed before us.  It is necessary to make one point clear.  The respondents have raised the  plea of  waiver, and the onus lies heavily on them  to  establish the essential requirements in support of the plea. Two   points  arise  in  this  connection:  (1)   have   the respondents  established,  on the materials before  us,  the necessary  facts on which a plea of waiver can be founded  ; and  (2)  if so, can a fundamental right guaranteed  by  the Constitution  be  waived  at all.  If  the  first  point  is answered  in  the  negative, the second point  need  not  be answered in the abstract.  On behalf of the respondents,  it has  been submitted that assuming (without  conceding)  that the discriminatory provisions of the Act were applied in the case  of the assessee before he asked for a settlement,  the materials  on  record -show that he never  objected  to  the procedure  adopted, voluntarily asked for a settlement,  got by the settlement the benefit. of reducing his liability for both  tax and penalty, and paid without demur the  following instalments (some even after Muthia’s decision (1) ) (1)  [1955] 2 S.C.P. 1247. 584     Payments made up to April 55         10,000     Payment made on      10-5-55          5,000                   19-6-55          5,000                    7-7-55          5,000                   13-8-55          5,OOO                    7-9-55          5,000                   15-10-55         5,000                   10-11-55         5,000                   15-12-55         5,000                    8-2-56          5,000                   13-2-56          5,000                    7-3-56          5,000                   14-5-56          5,000                   19-5-56          5,000                   13-6-56          5,000                    6-8-56          5,000                    7-9-56          5,000                    9-10-56         5,000                   10-11-56         5,000                   23-12-56         5,000                   14-1-57          5,000                   29-3-57          5,000                    4-6-57          5,000                    8-9-57          8,000                                 ----------                                  1,28,000                                 ----------- The  learned  Attorney  General  has  in  this-   connection referred  us  to the application for  settlement  which  the assessee  had made to the Commission, wherein the  following statements were made:- "  in view of the fact that though no  disclosure  statement had  been made before the submission of his reports  by  the authorised  official,, still during the enquiry  before  the Commission,,  the assessee and his auditors  admitted  their liability  to  tax in respect of the aforesaid  sum  of  Rs.

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4,47,915,  the  Commission  was  of  the  opinion  that  the assessee  should be granted the benefit of a  settlement  on the  lower concessional basis of payment of 75 per cent.  of the  undisclosed income by way of tax.  The  Commission  was also  of the opinion that the assessee should pay by way  of penalty a sum of Rs. 14,064.                     585 The  assessee accepts the conclusions of the  Commission  as regards  the amount of income that escaped  assessment,  the tax payable thereon and the penalty payable as aforesaid." On  the  basis  of these statements,  the  learned  Attorney General  has  argued  that there is no  foundation  for  the suggestion   made  on  behalf  of  the  assessee  that   the application for settlement was made " under the pressure  of circumstances  and in view of the coercive machinery of  the Act." He has submitted that the necessary facts on which the plea of waiver is founded have been established, and he  has relied on three cases decided by this Court, where according to him the effect of the decisions was to accept such a plea in circumstances very similar: Dewan Bahadur Seth Gopal  Das Mohta v. The Union of India(1); Baburao Narayanrao Sanas  v. The   Union  of  India  (2);  and  Laxnanappa   Hanumantappa Jamkhandi  v.  The  Union  of India (3)  On  behalf  of  the assessee, it is contended on the contrary that the necessary facts  to found a plea of waiver are totally absent  in  the present  case,  and none of the  aforesaid  three  decisions which were all pronounced on the same day proceed on a  plea of waiver. Two  of  the three decisions referred to above relate  to  a settlement  made under s. 8A and the third to an order  made under  s.  8(2) of the Act.  All the  three  decisions  were pronounced  on  applications  made  under  Art.  32  of  the Constitution,  and  not on any appeal from an order  of  the revenue  authority.   In  Gopal Das  Mohta’s  case  (1)  the argument  urged was, inter alia, that ss. 5, 6, 7 and  8  of the Act were invalid and ultra vires as they contravened the provisions  of  Arts.  14,  19  (1)  (f),  and  31  of   the Constitution  and  the  prayer  made  was  that  the  entire proceedings should be quashed as also all orders made by the Central  Government in pursuance of the settlement under  s. 8A.   In rejecting the argument and prayer, Mahajan, C.  J., who delivered the , judgment of the Court said at p. 776- (1) [1955] 1 S.C.R. 773.         (2) [1954] 26 I.T.R. 725. (3)  [1955] 1 S.C.R. 769. 74 586 "  In  our judgment this petition  is  wholly  misconceived. Whatever tax the petitioner has already paid, or whatever is still recoverable from him, is being recovered on the  basis of  the  settlement  proposed by him  and  accepted  by  the Central Government.  Because Of his request for a settlement no assessment was made against him by following the whole of the  -procedure  of the Income-tax Act.  In  this  situation unless  and  until  the petitioner can  establish  that  his consent  was  improperly procured and that he is  not  bound thereby  he  cannot  complain that any  of  his  fundamental rights  has been contravened for which he can  claim  relief under  art.  32 of the Constitution.  Article 32  of  ’,,the Constitution   is  not  intended  for  relief  against   the voluntary actions of a person.  His remedy, if any, lies  in other appropriate proceedings." There  has been a good deal of argument before us as to  the true  effect of the decision in Gopal Das Mohta’s case  (1). While  I recognise that the reason stated for the  decision, viz.,  that  Art.  32 is not  intended  for  relief  against

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voluntary  actions  of a person, comes very near  to  saying that  a  person has waived his protection in  a  given  case since  whatever  injury he may incur is due to his  own  act rather  than  to  the  enforcement  of  an  unconstitutional measure  against him, I am unable to hold that the  decision proceeded strictly on the doctrine of waiver; it is  perhaps true  to say that some of the observations made therein  are of a " Delphic nature to be translated into concreteness  by the process of litigating elucidation" (to borrow the  words of Frankfurter, J., in Machinists v. Gonzales (2).  It seems to  me  that the decision proceeded more upon the  scope  of Art. 32 than upon the doctrine of waiver.  I am fortified in this view by the circumstance that in a decision given  only a  month earlier (see Behram Khurshed Pesikaka v. The  State of  Bombay  (3)) the same learned  Chief  Justice  expressed himself strongly, though tentatively, against introducing in our  Constitution  the doctrine of waiver as  enunciated  by some   American   Judges   in   construing   the    American Constitution, without a full discussion of the matter.   The report of Gopal (1) [1955] 1 S.C.P. 773.       (2) (1958) 356 U.S. 617,619 (3) [1955] 1 S.C.R. 613 653,654. 587 Das  Mohta’s case (1) does not contain any reference to  the doctrine  of  waiver,  and it is  obvious  that  no  ,fuller discussion  of the doctrine took place in that case.  It  is not, therefore, reasonable to hold that the effect of  Gopal Das Mohta’s case is to uphold the doctrine of waiver.   Babu Rao’s case (2) merely followed Gopal Das Mohta (1) and  gave no separate reasons.  Laxmanappa Jamkhandi’s case (3)  dealt with an order under s. 8(2) of the Act and said at p. 772:- "  From  the  facts  stated  above  it  is  plain  that  the proceedings  taken  under  the  impugned  Act  XXX  of  1947 concluded   so  far  as  the  Investigation  Commission   is concerned  in  September, 1952, more than two  years  before this  petition was presented in this Court.  The  assessment orders under the Income-tax Act itself were made against the petitioner in November, 1953.  In these circumstances we are of  the opinion that -he is entitled to no relief under  the provisions  of Article 32 of the Constitution.  It was  held by  this Court in Ramjilal v. Income-tax Officer,  Mohindar- garh,  [1951]  S.C.R. 127, that as there is a  special  pro. vision in Article 265 of the Constitution, that no tax shall be  levied or collected except by authority of  law,  clause (1)  of Article 31 must therefore be regarded  as  concerned with   deprivation  of  property  otherwise  than   by   the imposition  or collection of tax, and inasmuch as the  right conferred  by Art. 265 is not a right conferred by Part  III of the Constitution, it could not be enforced under  Article 32.   In  view of this decision it has to be held  that  the petition  under  Article  32  is  not  maintainable  in  the situation  that  has arisen and that even otherwise  in  the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court." Here,  again,  there  is no reference  to  the  doctrine  of waiver,  and the case was decided on the ambit and scope  of Art. 32 of the Constitution. I  would hold, therefore, that the decisions of  this  Court relied on by the learned Attorney General do (1) [1955] 1 S.C.R. 773.        (2) [1954] 26 I.T.R. 725. (3)[1955] 1 S.C.R.769. 588 not help him in establishing waiver.  Let me now examine the circumstances  on which the learned Attorney General  founds

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his  plea of waiver.  Indeed, it is true that  the  assessee submitted to the discriminatory procedure applied to him  by the  Commission; he also asked for a settlement under  which he  agreed  to pay 75% of his alleged tax  liability  and  a small amount of penalty; he made some payment in instalments even  after Muthia’s decision in December, 1955.   Do  these circumstances amount to waiver ? It is to be remembered that in  1953-1954 when the discriminatory procedure of  the  Act was  applied to him and the report against him was  made  by the  Commission  on  which  the  settlement  is  based,  the assessee  did not know, nor had it been declared by a  court of competent jurisdiction that s. 5(1) of the Act was  ultra vires.  In his application for a settlement, he said clearly in  paragraph  3 that the Commission announced - it  as  its view  that  the income, profits and gains that  had  escaped assessment  in the hands of the assessee was  Rs.  4,47,915. The  assessee also knew that under the Act this finding  was final  and binding on him.  If in these  circumstances,  the assessee made an application for settlement, can it be  said that  it is a voluntary or intentional relinquishment  of  a known right ? I venture to think not.  It has been said that ’  waiver’ is a troublesome term in the law.  The  generally accepted connotation is that to constitute ’ waiver’,  there must  be an intentional relinquishment of a known  right  or the  voluntary  relinquishment  or abandonment  of  a  known existing  legal  right,  or  conduct  such  as  warrants  an inference  of  the  relinquishment  of  a  known  right   or privilege.   Waiver differs from estoppel in the sense  that it  is contractual and is an agreement to release or not  to assert a right; estoppel is a rule of evidence. (See  Dawson Bank  Limited v. Nippon Menkwa Kabushiki Kaisha) (1).   What is  the known legal right which the  assessee  intentionally relinquished or agreed to release in 1953-1954 ? He did  not know then that any part of the Act was invalid, and I  doubt if in (1) (1935) L.R.62 I.A.100,108.                     589 the  circumstances of this case, a plea of ’waiver’  can  be founded on the maxim of ’ignorance of law is no excuse’.   I do not think that the maxim ’ignorance of law is no  excuse’ can  be  carried to the extent of saying that  every  person must be presumed to know that a piece of legislation enacted by  a legislature of competent jurisdiction must be held  to be-invalid, in case it prescribes a differential  treatment, and he must, therefore, refuse to submit to it or incur  the peril  of the bar of waiver being raised against him.  I  do not think that such pre-science is a necessary corollary  of the maxim.  On the contrary, the presumption, if any,  which operated at the relevant time was the presumption that a law passed by a competent legislature is valid, unless  declared unconstitutional  by  a  court  of  competent  jurisdiction. Furthermore, I do not think that any inference of waiver can be retrospectively drawn from the instalments paid in  1956- 57, particularly when the question of refund of the  amounts already paid is no longer a live issue before us.  It would, I  think, be going too far to hold that  every  unsuspecting submission  to a law, subsequently declared to  be  invalid, must  give  rise  to  a plea  of  waiver:  this  would  make constitutional  rights  depend  for their  vitality  on  the accident of a timely challenge and render them illusory to a very large extent. I  hold,  therefore,  that  the  necessary  foundation   for sustaining  the  plea of waiver has not been  laid  in  this case,  and the onus being on the respondents, the plea  must fail.

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In view of my finding that the necessary foundation on facts for sustaining the plea of waiver has not been laid in  this case, it becomes unnecessary to decide, in the abstract, the further  question  if  a  right guaranteed  by  any  of  the provisions in Part III of the Constitution can be waived  at all.   I  am of the view -that this Court should  indeed  be rigorous  in avoiding to pronounce on constitutional  issues where  a  reason.  able  alternative  exists;  for  we  have consistently  followed  the two principles (a)  that  "  the Court  will not anticipate a question of constitutional  law in 590 advance  of  the  necessity  of deciding  it  "  (Weaver  on Constitutional  Law,  p. 69) and (b) " the  Court  will  not formulate  a  rule  of constitutional law  broader  than  is required by the precise facts to which it is to be applied " (ibid, p. 69). My Lord the Chief Justice and my learned brother Kapur,  J., have  however expressed the view that the fundamental  right guaranteed  under  Art.  14 cannot  be  waived;  my  learned brethren,  Bhagwati and Subba Rao, JJ., have  expressed  the view  that none of the fundamental rights guaranteed by  the Constitution can be waived. I  greatly  regret  to have to say that I  have  come  to  a conclusion  different  from  theirs  with  regard  to   this question,  and  as they have thought fit  to  express  their views  on  it  proceed now to explain why I have come  to  a conclusion  different from those of my learned  brethren  on this question. This  question  was mooted, though not  fully  answered,  in Behram Khurshed Pesikaka’s case (1).  Venkatarama Aiyar, J., expressed  his  views  at pages 638 to 643  of  the  report. Mahajan, C. J., with whom Mukherjea, Vivian Bose and  Ghulam Hasan,  JJ., concurred, expressed his views at pages 651  to 655 of the report, and my Lord the Chief Justice as Das, J., reserved  his  opinion  on the  question.   The  view  which Venkatarama   Aiyar,   J.,  expressed  was  this:   if   the constitutional  provision which has been  infringed  affects the competence of the legislature which passed the law,  the law is a nullity; as for example, when a State enacts a  law which is within the exclusive competence of the Union; when, however,  a law is within the competence of the  legislature which passed it and the unconstitutionality arises by reason of  its repugnancy to provisions enacted for the benefit  of individuals,   it   is  not  a  nullity,   but   is   merely unenforceable; such unconstitutionality can be waived and in that  case  the law becomes enforceable.  He  said  that  in America  this principle was well settled and he referred  to Cooley on Constitutional Limitations, Volume 1, pages 368 to 371 ; Willis on Constitutional Law at (1)  [1955] 1 S.C.R. 613, 653, 654. 591 pages 524, 531, 542 and 558; Rottschaefer on  Constitutional Law  at  pages 28 and 29-30.  He then  referred  to  certain American decisions in support of his views and then said:- " The position must be the same under our Constitution  when a law contravenes a prescription intended for the benefit of individuals............  It  is  open to  any  person  whose rights  have  been infringed to waive it and when  there  is waiver,  there is no legal impediment to the enforcement  of the law.  It will be otherwise if the statute was a nullity; in  which  case it can neither be waived nor  enforced.   If then  the  law is merely unenforceable and can  take  effect when waived, it cannot be treated as non est and as effaced out of the statute book."

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The  contrary view expressed by Mahajan, C. J., can be  best explained in his own words: "  We  think  that  it is not  a  correct  proposition  that constitutional  provisions in Part III of  our  Constitution merely  operate  as a check on the exercise  of  legislative power.   It is axiomatic that when the lawmaking power of  a State  is restricted by a written fundamental law, then  any law  enacted and opposed to fundamental law is in excess  of the legislative authority and is thus a nullity.  Both these declarations  of unconstitutionality go to the root  of  the power itself and there is no real distinction between  them. They represent but two aspects of want of legislative power. The  legislative  power  of the  Parliament  and  the  State legislatures  as  conferred  by Arts. 245  and  246  of  the Constitution  stands  curtailed by  the  fundamental  rights chapter of the Constitution.  " His  Lordship then referred to Art. 13 of  the  Constitution and said that it was a clear and unequivocal mandate of  the fundamental  law prohibiting the State from making any  laws which came into conflict with Part III of the  Constitution. His Lordship added: " In our opinion the doctrine of, waiver enunciated by  some American  Judges  in construing  the  American  Constitution cannot  be introduced in our Constitution without  a  fuller discussion of the matter......... Without finally expressing an opinion on this question, we 592 are  not for the moment convinced that this theory  has  any relevancy in construing the fundamental rights conferred  by Part  III  of the Constitution.  We think  that  the  rights described as fundamental rights are a necessary  consequence of the declaration in the ,preamble that the people of India have solemnly resolved to constitute India into a  sovereign democratic  republic  and  to secure  to  all  its  citizens justice, social, economic and political; liberty of thought, expression,  belief, faith and worship; equality  of  status and of opportunity.  These fundamental rights have not  been put  in  the  Constitution merely  for  individual  benefit, though  ultimately they come into operation  in  considering individual rights.  They have been put there as a matter  of public  policy  and  the doctrine of  waiver  can,  have  no application to provisions of law which have been enacted  as a matter of constitutional policy." It would appear that the two main reasons which Mahajan,  C. J.,  gave  in  support of the views expressed  by  him  were these.   Firstly, he held that the effect of Art. 13 of  the Constitution was to prohibit the State from making any  laws which  came into conflict with Part III of the  Constitution and  he  recognised  no such distinction  as  was  drawn  by Venkatarama Aiyar, J., between absence of legislative  power (that   is,  incompetence  of  the  legislature)  and   non- observance of provisions which operate merely as a check  on the exercise of legislative power.  He thought that  absence of  legislative  power and check on the exercise  of  legis- lative power were both aspects of want of legislative power. Secondly, he referred to the preamble and the scheme of Part III  of  the Constitution in support of his  view  that  the doctrine  of  waiver  did not  apply.   I  shall  take-these reasons in the order in which I have stated them. First,  as  to the effect of Art. 13  of  the  Constitution. Article 13 is in two parts: the first part deals with "  all laws  in force in the territory of India immediately  before the commencement of this Constitution "’and says that so far as  such laws are inconsistent with the provisions  of  Part III, they shall to the extent of such

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inconsistency be void; the second part deals with laws  made after  the commencement of the Constitution and says that  " the  State  shall  not make any law  which  takes.  away  or abridges  the  rights  conferred  by  Part  III  "  of   the Constitution and any law made in contravention of cl. (2) of Art.  13 shall to the extent of  the contravention  be void. It seems clear to me that the Article itself recognises  the distinction between absence of legislative power which  will make the law made by an incompetent legislature wholly void, and  exercise  of legislative power in  contravention  of  a restriction or check on such power, which will make the  law void  to the extent of the inconsistency  or  contravention. The use, of the words " to the extent of the inconsistency " and  "  to  the extent of the  contravention  "  indubitably points  to such a distinction, and indeed this  was  pointed out in Bhikaji Narain Dhakras v. The State of Madhya Pradesh (1).   This  was  an unanimous decision of  this  Court  and several earlier decisions including the decision in  Kesavan Madhava Menon’s case (2), on which Mahajan, C. J., placed so much  reliance,  were considered therein.  The  decision  in Behram  Khurshed Pesikaka (3)was also considered,  and  then the following observations were made with regard to Art.  13 of the Constitution at p. 598- " Article 13(1) by reason of its language cannot be read  as having obliterated the entire operation of the  inconsistent law or having wiped it out altogether from the statute book. Such   law  existed  for  all  past  transactions  and   for enforcement  of  rights and liabilities accrued  before  the date  of the Constitution, as was held in  Keshavan  Madhava Menon’s  case.   The law continued in force even  after  the commencement  of the Constitution, with respect  to  persons who  were not citizens and could not claim  the  fundamental right.  In short, Art. 13(1) had the effect of nullifying or rendering  the  existing law which had  become  inconsistent with  Art.  19(1)(g)  read with el. (6)  as  it  then  stood ineffectual, nugatory and devoid of any legal (1) [1055] 2 S.C.R. 589-           (2) [1951] S.C.R. 228. (3)  [1955] 1 S.C.R. 613,653. 654. 75 594 force  or binding effect only in respect of the exercise  of the   fundamental  right  on  or  after  the  date  of   the commencement    of    the    Constitution............    All laws,existing  or  future, which are inconsistent  with  the provisions  of  Part  III of our Constitution  are,  by  the express provision of Art. 13, rendered void I to the  extent of  such  inconsistency’.  Such laws were not dead  for  all purposes." The  aforesaid view expressed in Bhikaji Narain’s  case  (1) was accepted in many later decisions including the  decision in  Muthia’s  case  (2).  The  same  distinction  was  again referred  to in another unanimous decision of this Court  in The State of Bombay v. R.M.D. Chamarbaugwala (3) where at p. 885 it was observed: The  Court of Appeal has rightly pointed out that  when  the validity  of an Act is called in question, the  first  thing for  the court to do is to examine whether the Act is a  law with   respect  to  a  topic  assigned  to  the   particular Legislature  which enacted it. if it is, then the  court  is next  to consider whether, in the case of an Act  passed  by the  Legislature of a Province now a State),  its  operation extends beyond the boundaries of the Province or the  State, for under the provisions conferring legislative powers on it such Legislature can only make a law for its territories  or any  part thereof and its laws cannot, in the absence  of  a

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territorial nexus, have any extra territorial operation.  If the  impugned law satisfies both these tests,  then  finally the court has to ascertain if there is anything in any other part  of  the Constitution which places ˜any fetter  on  the legislative  powers of such Legislature.  The  impugned  law has to pass all these three test." Therefore,  the mere use of the word ˜(6 void " in  Art.  13 does not necessarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part   III   of  our  Constitution.   Under   the   American Constitution   also,   a  law  made  in   violation   of   a constitutional guarantee is struck down, because under  Art. VI of that Constitution, " the Constitution and the laws  of the United States which (1) [1955] 2 S.C.R. 589.        (2) [1955] 2 S.C.R. 1247. (3)  [1957]  S.C.R. 874. 595 shall  be made in -pursuance thereof......... shall  be  the supreme law of the land." I am unable, therefore, to  accept the view that Art. 13 shows that the doctrine of waiver  can never be applied in respect of the provisions in Part III of the Constitution. Let  me now go to the second reason. Is there any  thing  in the  preamble  and  the scheme  of  our  Constitution,  with particular  reference  to  Part III,  which  will  make  the doctrine of waiver inapplicable ? Let me first place the two preambles side by side:      Premple to our             Premple to the American       Constitution.                Constitution,1787.   "We the people of India     "We the people of the United having solemny resolved to     States, in order to form a constitute India into a so-    more perfect Union,establish vereign democratic republic    justice,insure domestic tra- and to secure to all its ci-   nquillity,provide for the tizens:justice,social,ecc-     common defence,promote the nomic and political; liber-    general welfare,and secure ty of though,expression,       the blessing of liberty to belief,faith and worship;      ourselves and our posterity equality of status and of      do ordain and establish opportunity;and to promote     this Constitution for the among them all fraternity      United State of America." assuring the dignity of the individual and the unity of the nation;in our Constitu- ent Assemply this twenty- sixth day of November,1949 do hereby adopt,enact and give to ourselves this Co- nstitution." 596 American  Constitution  were : (a) to form  a  more  perfect Union;  (b)  to establish justice; (c)  to  insure  domestic tranquillity;  (d)  to promote general welfare; and  (e)  to secure  the blessings of liberty.  In our Constitution,  the emphasis  is  on  the Welfare  State-on   Justice,  Liberty, Equality and Fraternity.  But the question before us is  the limited  question  of  the application of  the  doctrine  of waiver.  I do not find any. thing in the two preambles which will  make  the  doctrine applicable in  one  case  and  not applicable in the other. It  is necessary to refer here to one important  distinction between  the  two  Constitutions.   Speaking  broadly,   the American  Constitution  of  1787, except  for  defining  the enumerated powers of the Federal Government and limiting the powers  of  the  States, was an outline  of  government  and

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nothing  more.   Its  provisions  were  written  in  general language  and  did  not  provide  minute  specifications  of Organisation   or   power.    It   contemplated   subsequent legislation  and interpretation for carrying the  provisions into  effect.  In other words, it was early recognised  that the   Constitution  was  not  self-executing.   The   Indian Constitution  is  more  detailed, and in  Part  III  of  the Constitution  are  provisions which not  merely  define  the rights  but  also state to what extent they are  subject  to restrictions  in the interests of general welfare, etc.   In other words, there is an attempt at adjustment of individual rights  with social good, and in that sense the  limitations or  restrictions are also defined.  But I do not think  that this distinction has any particular bearing on the  question at issue before us.  The rights as also the restrictions are justiciable,  and an interpretation of the rights given  and of   the  restrictions  imposed,  by  courts  of   competent jurisdiction is contemplated. Indeed,  I recognise that there is a  constitutional  policy behind   the   provisions  enacted  in  Part  III   of   the Constitution.  In a, sense, there is a legislative policy in all  statutory  enactments.   In  my  opinion,  the  crucial question  is  not  whether  there  is  a  constitutional  or legislative  policy behind a particular provision,  but  the question is-is the provision meant                     597 primarily  for the benefit of individuals or is it  for  the benefit  of  the general public ? That  distinction  has,  I think, been recognised in more than one decision.  Take, for example,  an ordinary statutory enactment like s. 80 of  the Code  of  Civil Procedure which says that no suit  shall  be instituted  against  the  Government  or  against  a  public officer in respect of any act purporting to be done by  such public officer in his official capacity until the expiration of two months next after a notice in writing has been given, etc.  There is undoubtedly a reason of public policy  behind this  provision,  but  it is open to  the  party  for  whose benefit the vision has been made to waive notice and  indeed the  party may be estopped by his conduct from pleading  the want  of  notice.  As the Privy Council pointed out  in  AL. AR.   Villavar  Chettiar v. Government of  the  Province  of Madras   (1),   there  is  no  inconsistency   between   the propositions that the provisions of a section are  mandatory and  must  be  enforced by the court and that  they  may  be waived by the authority for whose benefit they are provided. The question then is-is there anything in the statute  which militates against the application of the doctrine of  waiver to  such  right, subject to the safeguards  and  precautions necessary for the application of the doctrine, provided  the right is for the benefit of individuals ? I  am  conscious that rights which the  Constitution  itself characterises as fundamental must be treated as such and  it will  be wrong to whittle them down.  But are  we  whittling down  fundamental  rights when we say that the  question  of waiver  of  fundamental  rights cannot be  answered  in  the abstract-by a general affirmative or a general negative; the question  must always depend on (a) the nature of the  right guaranteed and (b) the foundation on the basis of which  the plea  of waiver is raised.  It is to be remembered that  the rights  guaranteed by Part III of the Constitution  are  not confined  to  citizens  alone.   Some  of  the  rights   are guaranteed to non-citizens also.  Moreover, they are not all rights   relating   to  justice,   liberty,   equality   and fraternity; some of the provisions define the rights (A)  (1947) L.R. 74 I.A. 223, 228.

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698 while others indicate the restrictions or checks subject  to which the rights are granted.  Article 33, for example, does not  give any right to any person; on the contrary it  gives power  to Parliament to modify the rights conferred by  Part III in their application to persons.  Article 34 lays down a conferred by Part III while in any area.  It is not,  there- fore,  quite correct to say that all the provisions in  Part III  grant  fun  amental  rights,  though  the  heading   is ’Fundamental Rights’. There is, I think, a three-fold classification: (1) a  right granted  by  an ordinary statutory enactment;  (2)  a  right granted by. the Constitution; and (3) a right guaranteed  by Part  III of the Constitution.  With regard to  an  ordinary statutory  right  there is, I think, no difficulty.   It  is well  recognised  that a statutory right which  is  for  the benefit  of  an individual can in  proper  circumstances  be waived by the party for whose benefit the provision has been made.   With  regard to a constitutional right,  it  may  be pointed  out  that  there  are  several  provisions  in  our Constitution  which do not occur in Part III, but which  yet relate  to  certain rights; take, for  example,  the  rights relating  to the Services under the Union and the States  in Part XIV.  I do not think that it can be seriously contended that  a right which is granted to a Government  servant  for his benefit cannot be waived by him, provided no question of jurisdiction is involved.  I may refer in this connection to the provisions in Part XIII which relate to trade,  commerce and  intercourse  within  the  territory  of  India.   These provisions   also   impose  certain  restrictions   on   the legislative  powers  of  the Union and of  the  States  with regard  to trade and commerce.  As these provisions are  for the benefit of the general public and not for any particular individual, they can not be waived, even though they do  not find place in Part III of the Constitution.  Therefore,  the crucial  question is not whether the rights or  restrictions occur in one part or other of the Constitution.  The crucial question  is  the nature of the right given: is it  for  the benefit of individuals or is it for the general public? 599 That,  in  my opinion, is the true test.  I may  here  state that  the source of the right-contractual or statutory  --is not  the  determining  factor.  The doctrine  of  waiver  is grounded  on  the  principle  that  a  right,  statutory  or otherwise, which is for the benefit of an individual can  be waived  by  him.  I am aware that a right which is  for  the benefit  of the general public must in its actual  operation relate to particular individuals, in the same way as a right for the benefit of individuals will in its actual  operation arise  in connection with individual A or individual B.  The test  is  not  whether in its operation  it  relates  to  an individual.   The test is -for whose benefit the  right  has been primarily granted for the benefit of the general public or for individuals ? Let me now apply this test to some of the provisions in Part III  of  the  Constitution.   These  provisions  have   been classified under different heads: (1) right to equality, (2) right to freedom, (3) right against exploitation, (4)  right to freedom of religion, (5) cultural and educational rights, (6)  right  to  property and  (7)  right  to  constitutional remedies.   There can be no doubt that some of these  rights are  for  the  benefit of the  general  public.   Take,  for example,  Art. 23 which prohibits traffic in  human  beings, etc  ; so also Art. 24 ’which says that no child  below  the age  of 14 shall be employed to work in any factory or  mine

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or engaged in any other hazardous employment.  I do not wish to  multiply  examples and it is sufficient  to  state  that several of these rights are rights which are meant primarily for  the  benefit  of  the general public  and  not  for  an individual.   But can we say the same thing in  -respect  of all  the  rights ? Let us take Art. 31, which says  that  no person  shall be deprived of his property save by  authority of  law and that no property shall be compulsorily  acquired or  requisitioned  save  for a public purpose  and  save  by authority of law which provides for compensation, etc.  Take a case where a man’s property is acquired under a law  which does  not  fix  the amount of compensation  or  specify  the principles on which or the manner in which the  compensation is to be determined and given.  The man whose 600 property  is taken may raise no objection to the  taking  of his property under such law.  Indeed, he may expressly agree to Government taking his land for a public purpose under the law  in  question,  though  it  does  not  comply  with  the requirements  as to compensation.  Can such a man after  two or  three  years  change his mind and say that  the  law  is invalid  and  his land on which a school or a  hospital  may have  been built in the meantime should be restored to  him, because  he could not waive his fundamental right ?   In  my opinion,  if  we express the view in the  abstract  that  no fundamental  right  can ever be waived, many  startling  and unforeseen  results  may  follow.   Take  another   example. Suppose  a man obtains a permit or a licence for  running  a motor vehicle or an excise shop.  Having enjoyed the benefit of  the permit for several years, is it open to him  to  say when action is proposed to be taken against him to terminate the licence, that the law under which the permit was granted to  him was not constitutionally valid ? Having derived  all the  benefit from the permit granted to him, is it  open  to him  to  say  that the very Act under  which  a  permit  was granted  to  him  is  not valid in  law  ?  Such  and  other startling results will follow if we decide in the  abstract, by a general negative, that a fundamental right can never be waived.  Take Art. 32, which is a right to a  constitutional remedy,  namely,  the  right to move the  Supreme  Court  by appropriate  proceedings for the enforcement of  the  rights conferred  by Part III.  It is now well settled  by  several decisions  of  this court that the right under  Art.  32  is itself a fundamental right.  Suppose a person exercises that right and initiates appropriate proceedings for  enforcement of  a  fundamental right’ Later he thinks better of  it  and withdraws his application.  Still later he changes his mind. Can he then say that he could not waive his right under Art. 32  and the order passed on his application  for  withdrawal had  no legal validity ? We may take still another  example. Under  Art.  30(1)  of  the  Constitution,  all  minorities, whether  based  on religion or language, have the  right  to establish and administer educational institutions of 601 their  choice.   Suppose, there is  a  minority  educational institution  and  the minority has the right  to  administer that institution, but they want grant from Government.   The minority  may  have  to  surrender  part  of  its  right  of administration  in  order to get Government  aid.   Can  the minority  waive  its  right?   Such  a  question  arose  for consideration  in  the  advisory opinion which  we  gave  in connection with the Kerala Education Bill and-, so far as  I have  been able to understand, the effect of our opinion  is that  the  minority  can  surrender part  of  its  right  of administration of a school of its own choice in order to get

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aid  from Government.  If we now hold that the minority  can never  surrender its right, then the result will be that  it will never be able to ask for Government aid. I  do  not  see  any  such  vital  distinction  between  the provisions  of  the American Constitution and those  of  our Constitution  as  would lead me to the conclusion  that  the doctrine  of  waiver applies in  respect  of  constitutional rights guaranteed by the American Constitution but will  not apply  in  respect of fundamental rights guaranteed  by  the Indian Constitution.  Speaking generally, the prohibition in Part  III  is against the State from taking  any  action  in violation of a fundamental right.  The word ’State’ in  that Part includes the Government and Parliament of India as also the  Government  and Legislature of each of the  States  and also all local or other authorities within the territory  of India or under the control of the Government of India.   The American  Constitution also says the same thing  in  effect. By Art.  VI it states that the Constitution and the laws  of the  United States which shall be made in pursuance  thereof shall be the supreme law of the land.  It is well settled in America  that the first ten amendments to the original  Con- stitution  were substantially contemporaneous and should  be construed  in pari materia.  In many of the  amendments  the phraseology  used  is  similar to  the  phraseology  of  the provisions of Part III of our Constitution. The position under the American Constitution is 76 602 well settled and a succinct statement of that position  will be  found in Rottschaefer on Constitutional Law, pp.  28-29. The learned author has summarised the position thus: "  There are certain constitutional provisions that  may  be waived  by  the  person  for  whose  protection  they   were intended.   A  person who has waived that  protection  in  a given instance may not thereafter. raise the issue that his, constitutional rights have been infringed in that  instance, since  whatever  injury he may incur is due to his  own  act rather  than  to  the  enforcement  of  an  unconstitutional measure against him. A  person  who  would  otherwise  be  entitled  to  raise  a constitutional issue is sometimes denied that right  because he  is  estopped to do so.  The factor  usually  present  in these  cases  is  conduct  inconsistent  with  file  present assertion  of that right, or conduct of such character  that it  would  be  unjust  to others  to  permit  him  to  avoid liability  on  constitutional  grounds.  A  person  may  not question  the  constitutionality of the  very  provision  on which  he bases the right claimed to be  infringed  thereby, nor  of  a  provision  that  is  an  integral  part  in  its establishment  or definition.  The acceptance of  a  benefit under one provision of an Act does not ordinarily preclude a person  from  asserting’  the  invalidity  of  another   and severable  provision  thereof, but there are  exceptions  to this  rule.   The.’ promoters of a public  improvement  have been  denied’ the right to contest the validity of the  rule apportioning its cost over the benefited lands, and a person who  has received the benefits of a statute may not  there-’ after  assert its invalidity to defeat the claims of  those, against  whom  it has been enforced in his  own  favour.   A state is estopped to claim that its own statute deprives it. of  its  property  without due process of  law  but  it  is- permitted to assert that its own statute invades rights that its  constitution  confers  upon  it.   Prior   inconsistent conduct  will not,however preclude a person  from  asserting the, invalidity of an act if under all the circumstances its

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assertion involves no 603 unfairness or injustice to those against whom it is raised." The   learned  Attorney  General  placed  reliance  on   the following decisions: (1) Pierce v. Somerset Railway (1); (2) Wall v. Parrot Silver and Copper Company (2); (3) Pierce Oil Corporation v. Phoenix Refining Company (3) ; (4) Shepard v. Barron(4)  ; (5) United States V. Murdock(5); (6) Patton  v. United States (6) ; and (7) Adams v. United States (7).  The position  in America is so well settled that I think  it  is unnecessary to examine the aforesaid decisions in detail.  I need  only refer to the observations of Frankfurter, J.,  in William A. Adam’s case (supra).  The observations were  made in  connection with a case where a trial was held without  a jury  at the request of the accused person himself in  spite of the guarantee of Amendment VI. The observations were- "  What was contrived as protections for the accused  should not be turned into fetters.  To assert as an absolute that a layman,  no  matter how wise or experienced he  may  be,  is incompetent to choose between judge and jury as the tribunal for  determining  his guilt or innocence, simply  because  a lawyer  has not advised him on the choice, is  to  dogmatize beyond the bounds of learning or experience." I have not been able to find any real reason on the basis of which the decisions given above with regard to the  American Constitution can be held to be inapplicable to similar cases arising under the Indian Constitution. Two subsidiary reasons have been given for holding that  the position under the Indian Constitution is different.  One is that  ours  is  a  nascent  democracy  and,  therefore,  the doctrine  of  waiver should not apply.  With respect,  I  am unable to concur in this view.  I do not think that we shall be  advancing  the  cause  of  democracy  by  converting   a fundamental  right into a fetter or using it as a means  for getting out of an (1)  (1898) 171 U.S. 641. (2)  (1917) 244.U.S.407. (3)  (1922) 259.U.S.125. (4)  (1904) 194.U.S.553. (5)  (1931) 284.U.S.141. (6)  (1930) 281.U.S.276. (7)  (1942) 317.U.S.269. 604 agreement freely entered into by the parties.  I  appreciate that  waiver  is not to be light heartedly  applied,  and  I agree that it must be applied with the fullest rigour of all necessary safeguards and cautions.  What I seriously  object to  is  a statement in the abstract and "in  absolute  terms that  in  no circumstances can a right given by any  of  the provisions  in  Part  III of  the  Constitution  be  waived. Another  point  taken  is that the provisions  in  Part  III embody what are called  natural rights’ and such rights have been  retained  by the people and can  never  be  interfered with.   I  am unable to acquiesce in this.   The  expression natural  rights’  is in itself somewhat  vague.   Sometimes, rights  have  been divided into  natural rights’  and  civil rights’,  and  natural rights’ have been stated to be  those which are necessarily inherent or innate and which come from the very elementary laws of nature whereas civil rights  are those  which arise from the needs of civil as  distinguished from  barbaric communities.  I am unable, however, to  agree that any such distinction is apparent from the provisions in Part  III  of our Constitution: all the rights  referred  to therein appear to be created by the Constitution.  I do  not think  that Locke’s doctrine of natural rights’,  which  was

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perhaps  the  authority  for  the  American  Declaration  of Independence,  played  any  part in  the  enactment  of  the provisions  of Part III of our Constitution.   The  doctrine which  has long since ceased to receive general  acceptance, has  been thus explained by E. W. Paterson (see Natural  Law and  Natural  Rights, Southern Methodist  University  Press, Dallas, 1955, p. 61): " The theory of natural rights, for which we are indebted to the seventeenth-century English philosopher, John Locke,  is essentially different from the theories of natural law  just discussed   in   that   it   lacked   the   two    important characteristics   above  -mentioned:  the  concept   of   an immutable   physical  order  and  the  concept   of   divine reason............ He begins with the purpose of  justifying the  existence of a government with coercive  powers.   What inconveniences would arise if there were no government?  Men would live in a " stage of nature’; to avoid confusion  with the                     605 political  state I shall call this a  condition of  nature’. In such a condition man would be free to work, to enjoy  the fruits  of his labour, and to barter with others;  he  would also  be free to enforce the law of nature  (whose  precepts Locke did not define) against every other man.  Since  Locke was an optimist about human nature he thought men would  get along  pretty  well  in this  lawless  condition.   Yet  the condition  of  nature  is  for  Locke  a  fiction  like  the assumption  of  a frictionless machine  in  mechanics.   The chief disadvantages that men in this condition would  suffer were,  he thought, the absence of an established  law,,  the absence  of  a  known and  impartial  magistrate  to  settle disputes, the absence of a. power sufficient to execute  and enforce  the  judgment of the magistrate.   Moved  by  these inconveniences,  men would enter into a social compact  with each  other whereby each would transfer to a  third  person, the government, such rights over his person and property  as the   government  must  have  in  order  to   remove   these inconveniences.    All   other   rights,   privileges,   and immunities he reserved, as a grantor of land conveys the fee simple  to  his son and reserves a life estate  to  himself. These reserved rights were  natural’ rights because they had originated  in  the  condition of nature  and  survived  the social compact." There  are, in my opinion, clear indications in Part III  of the  Constitution  itself  that the doctrine  of  ’  natural rights’  had  played  no  part in  the  formulation  of  the provisions  therein.   Take Arts. 33, 34 and 35  which  give Parliament power to modify the rights conferred by Part III. If they were natural rights, the Constitution could not have given  power to Parliament to modify them.  Therefore, I  am of  the view that the doctrine of ’natural  rights’  affords nothing but a foundation of shifting sand for building up  a thesis  that  the doctrine of waiver does not apply  to  the rights guaranteed in Part III of our Constitution. The true position as I conceive it is this: where a right or privilege  guaranteed  by  the  Constitution  rests  in  the individual  and  is primarily intended for his  benefit  and does not impinge on the right of others, it 606 can  be waived provided such waiver is not forbidden by  law and does not contravene public. policy or public morals. In  the  case  before  us, I have  held  that  there  is  no foundation   on  facts  to  sustain  the  plea  of   waiver. Therefore,  I would allow the appeal with costs.  The  order of the Commissioner of Income-tax, Delhi, dated January  29,

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1958, must be set aside and all proceedings now pending  for implementation  of the order of the Union  Government  dated July 5, 1954, must be quashed. SUBBA  RAO,  J.-I  have had the advantage  of  perusing  the judgments  of  my  Lord the Chief  Justice  and  my  learned brother, S. K. Das, J. I agree with their conclusion, but  I would  prefer to express my opinion separately in regard  to the question of the applicability of the doctrine of  waiver to the fundamental rights. This  case  raises a most serious  and  important  question, viz.,  whether  the  doctrine  of  waiver  operates  on  the fundamental rights enshrined in the Constitution, a question not  confined to the immediate purpose of  this  litigation, but  to  the public in general.  The question  is  bound  to arise  frequently,  and  the  varying  observations  already expressed  by  the learned Judges of this Court  would  lend scope   for  conflicting  decisions  involving  parties   in unnecessary litigation and avoidable hardship.  The question was  directly  raised and fully argued before  us.   In  the circumstances,  I  cannot share the opinion  of  my  learned brother,  S.  K.  Das, J., that this Court  should  avoid  a decision  on this question and leave it to be decided  in  a more appropriate case. The  facts  have  been fully stated by  my  Lord  the  Chief Justice in his judgment and I need not restate them. The learned Attorney General contended that in the  American Law the principle of waiver was applied to rights created by the Constitution except in cases where the protection of the rights  was based upon public policy and that, by  the  same analogy,  if no public policy was involved, even  in  India, the person                     607 affected by the infringement of the fundamental rights could waive  the constitutional protection guaranteed to him.   It was  said that in the present case the appellant waived  his fundamental  right under Art. 14 of the Constitution as  the right  was  only in respect of his liability to tax  and  he could  legitimately waive it.  To, appreciate this  argument it would be convenient at the outset to notice the  American Law  on  the subject.  Certain rights, which  are  sometimes described as the Bill of Rights, have been introduced by the Amendment; to the Constitution of America.  They declare the rights of the people of America in respect of the freedom of religion speech, press, assemblage and from illegal seizurs. They  guarantee trial by jury in certain criminal and  civil matters.   They give protection against  self-incrimination. The Fifth Amendment of the Constitution of the United States prescribes  that  no  person shall  be  deprived  of  life., liberty  or property without due process of law;  nor  shall private  property  be  taken for  public  use  without  just compensation.  The Fourteenth Amendment of the  Constitution introduces  the rule of due process as a protection  against the  State  action.  The said amendments are intended  as  a protection  to citizens against the action of the Union  and the  States.  Though the rights so declared are general  and wide in their terms, the Supreme Court of America, by a long course  of -judicial, interpretation, having regard  to  the social  conditions’  in that country, has given  content  to those  rights and imposed limitations thereon in an  attempt to reconcile individual rights with social good, by evolving counterbalancing   doctrines   of  police   power,   eminent domain,,.  and  such  others.   During  the  course  of  the evolution.  of  the  law, attempts were made  to  apply  the doctrine of waiver to the provisions of the Constitution  of America.   American Courts applied the doctrine  with  great

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caution  and  in  applying  the  same,  laid  down  definite principles. The  said  principles  were  culled  out  from  the  various decisions and clearly summarized in the authoritative, text- books on the Constitution of America under different heads: 608 WILLIS ON ’CONSTITUTIONAL LAW’: 1. Self-incrimination: The  privilege  against self-incrimination’  like-any  other privilege, is one which may be waived. 2.   Double jeopardy: Double  jeopardy is a privilege and may be waived  expressly or impliedly. 3.   Immunity against unreasonable searches and seizures: The  immunity is one which may be waived and by consent  one can make a search and seizure reasonable. 4. Jury Trial: The United States Supreme Court......... held that neither a jurisdictional  question nor the interest of the  State  was involved,  but only the privilege and right of the  accused, and that these were subject to waiver in accordance with the usual rules. 5.   Due  Process  of Law as a matter  of  jurisdiction: In  order to delimit personal liberty by  exercising  social control,  the branch of the government undertaking to do  so must  have jurisdiction.  If it does not have  jurisdiction, it  is taking personal liberty (life, liberty  or  property) without  due  process  of law.  To this rule  there  are  no exceptions.  It cannot be waived. ’COOLEY’S CONSTITUTIONAL LIMITATIONS’: Where  a  constitutional  provision  is  designed  for,  the protection solely of the property rights of the. citizen, it is competent for him to waive the protection, and to consent to  such  action as would be invalid if  taken  against  his will. In  criminal  cases  the  doctrine  that  a   constitutional privilege  may  be  waived must be true to  a  very  limited extent  only.   A  party may consent  to  waive  rights  of. property, but the trial and punishment for. public  offences are  not  within the provinces of individual  con.  sent  or agreement. CORPUS JURIS SECUNDUM: It  has  been  stated  supra (p. 1050,  note  32)  that  the doctrine of waiver extends to rights and privileges                     609 of any character, and since the word ’ waiver’ covers  every conceivable right, it is the general rule that a person  may waive  any  matter  which  affects  his  property,  and  any alienable  right  or privilege of which he is the  owner  or which  belongs  to him or to which he is  legally  entitled, whether  secured  by  contract,  conferred  by  statute,  or guaranteed   by  constitution,  provided  such  rights   and privileges  rest  in the individual, are intended  ’for  his sole  benefit, do not infringe on the rights of others,  and further provided the waiver Of the right or privilege is not forbidden by law, and does not contravene public policy, and the  principle  is recognized that everyone has a  right  to waive,  and agree to waive, the advantage of a law  or  rule made solely for the benefit and protection of the individual in  his  private capacity, if it can be dispensed  with  and relinquished  without  infringing on any  public  right  and without detriment to the community at large......... As  a general rule, rights relating to procedure and  remedy are  subject to waiver, but if a right is so fundamental  in its  nature  as  to  be regarded by  the  state  as  vitally

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integrated  in  immemorially established  processes  of  the administration of justice, it cannot be waived by anyone. The  cases  cited  at  the  Bar  illustrate  the   aforesaid principles.   The  doctrine was applied to  the  obligations under  a  contract  in Pierce v. Somerset  Railway  (1);  to deprivation of property without due process of law in Pierce Oil  Corporation v. Phoenix Refining Company(2) and  Shepard v.  Barron (3) to trial by jury in Patton v.  United  States (4)     and   Adams  v.  United  States(5);  and   to   self- incrimination in United States v. Murdock (6).  It is  true, as the learned counsel for the appellant contended, that  in some  of  the aforesaid decisions, observations are  in  the nature  of  obiter, but they clearly indicate the  trend  of judicial opinion in America. (1)  (1898) 43 L. Ed- 316; 171 U.S. 641. (2)  (1922) 66 L.Ed. 855; 259 U.S. 125. (3)  (1904) 48 L. Ed. 1115 ; 194 U. S. 553. (4)  (1930) 74 L. Ed. 854; 281 U.S. 276. (5)  (1942) 87 L. Ed. 268. (6)  (1931) 76 L. Ed 210; 284 U.S. 141. 77 610 The American Law on the subject may be summarized thus:  The doctrine of waiver can be invoked when the Constitutional or Statutory  guarantee of a right is not conceived  in  public interest or when it does not affect the jurisdiction of  the authority  infringing the said right.  But if the  privilege conferred or the right created by the statute is solely  for the benefit of the individual, he can waive it.  But even in those  cases  the Courts invariably administered  a  caution that  having regard to the nature of the right some  precau- tionary  and stringent conditions should be  applied  before the doctrine is invoked or applied. This leads me to the question whether the fundamental rights enshrined  in  the  Indian  Constitution  pertain  to   that category  of  rights  which  could be  waived.   To  put  it differently, whether the Constitutional guarantee in  regard to   the   fundamental  rights  restricts   or   ousts   the jurisdiction   of   the  relevant  authorities   under   the Constitution  to make laws in derogation of the said  rights or  whether  the  said rights are for  the  benefit  of  the general public.  At the outset I would like to sound a  note of  warning.   While it is true that the  judgments  of  the Supreme Court of the United States are of a great assistance to  this  Court  in elucidating and  solving  the  difficult problems  that  arise  from  time to  time,  it  is  equally necessary  to keep in mind the fact that the  decisions  are given  in  the context of a different social,  economic  and political  set  up,  and  therefore  great  care  should  be bestowed  in  applying those decisions to cases  arising  in India   with  different  social,  economic   and   political conditions.   While  the principles evolved by  the  Supreme Court of the United States of America may in certain circum- stances  be accepted, their application to similar facts  in India  may  not  always lead to the  same  results.   It  is therefore   necessary   to  consider  the  nature   of   the fundamental rights incorporated in the Indian  Constitution, the  conditions  of  the people for whose  benefit  and  the purpose  for which they were created, and the effect of  the laws made in violation of those rights.  The Constitution of India  in  its preamble promises to secure to  all  citizens justice, social, economic and 611 political; liberty of thought, expression, belief, faith and worship;  equality  of  status and of  opportunity;  and  to

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promote  among them all fraternity assuring the  dignity  of the  individual  and the unity of the nation.   One  of  the things  the  Constitution did to achieve the  object  is  to incorporate  the  fundamental rights  in  the  Constitution. They  are  divided  into  seven  categories:  (i)  right  to equality-Arts.  14 to 18; (ii) right to freedom-Arts. 19  to 22;  (iii) right against exploitation-Arts. 23 and 24;  (iv) right  to freedom of religion Arts. 25 to 28 ; (v)  cultural and  educational  rightsArts.  29  and  30;  (vi)  right  to property-Arts.  31,  31  A  and  31B;  and  (vii)  right  to Constitutional  remediesArts. 32 to 35.   Patanjali  Sastri, J., as he then was, pointed out, in Gopalan v. The, State of Madras(1), that fundamental rights contained in Part III  of the  Constitution are really rights that are still  reserved to  the people after the delegation of rights by the  people to the institutions of Government both at the Centre and  in the States created by the Constitution.  Article 13 reads :- (1) All laws in force in the territory of India  immediately before  the commencement of this Constitution, in so far  as they  are inconsistent with the pro. visions of  this  Part, shall, to the extent of such inconsistency, be void. (2)  The  State shall not make any law which takes away  or, abridges the rights conferred by this Part and any law  made in contravention of this clause, shall, to the extent of the contravention, be void." This  Article,  in  clear and unambiguous  terms,  not  only declares  that all laws in fore before the  commencement  of the   Constitution  and  made  thereafter  taking  away   or abridging the said rights would be void to the extent of the contravention  but also prohibits the State from making  any law  taking away or abridging the said rights.  Part III  is therefore  enacted  for the benefit of all the  citizens  of India,  in an attempt to preserve to them their  fundamental rights  against infringement by the institutions created  by the Constitution; for, without that safeguard, the objects (1) [1950] S. C. R. 88. 612 adumbrated in the Constitution could not be-achieve,-].  For the  same purpose, the said chapter imposes a limitation  on the  power of the State to make laws in violation  of  those rights.  The entire part, in my view, has been introduced in public  interest, and it is not proper that the  fundamental rights   created  under  the  various  Articles  should   be dissected to ascertain whether any or which part of them  is conceived  in  public  interest and which part  of  them  is conceived  for  individual benefit.  Part III  reflects  the attempt  of the Constitution makers to reconcile  individual freedom  with State Control.  While in America this  process of reconciliation was allowed to be evolved by the course of judicial  decisions,  in India, the fundamental  rights  and their  limitations  are  crystallized and  embodied  in  the Constitution  itself; while in America a freehand was  given to the judiciary not only to evolve the content of the right but  also its limitations, in the Indian Constitution  there is  not  much scope for such a process.   The  Court  cannot therefore import any further limitations on the  fundamental rights  other  than  those  contained in  Part  III  by  any doctrine,  such  as  "  waiver "  or  otherwise.   I  would, therefore, hold that the fundamental rights incorporated  in Part III of the Constitution cannot be waived. It  is said. that such an inflexible rule would, in  certain cases,  defeat  the very object for  which  the  fundamental rights  are  created.   I  have  carefully  scrutinized  the Articles in Part III of the Constitution of India, and  they do  not,  in my view, disclose any such  anomaly  or  create

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unnecessary  hardship to’ the people for whose  benefit  the rights  are  created.   Article,  14  embodies  the   famous principle of equality before the law and equal protection of the  laws,  and  Arts. 15 to 18 and  Art.  29(2)  relate  to particular   applications  of  the  rule.    The   principle underlying   these  Articles  is  the  mainspring   of   our democratic  form  of  government and it  guarantees  to  its citizens equal protection in respect of both substantive and procedural laws.  If the doctrine of waiver is engrafted  to the said fundamental principles, it will mean that a citizen can  agree  to  be discriminated.’  When  one  realizes  the unequal                     613 positions  occupied  by the State and the  private  citizen, particularly  in  India where illiteracy is rampant,  it  is easy  to visualize that in a conflict between the State  and -a  citizen,  the latter may, by fear of force  or  hope  of preferment,  give up his right.  It is said that in  such  a case coercion or influence can be established in a Court  of law,  but in practice it will be well nigh impossible to  do so.  The same reasoning will apply to Arts. 15 and 16.  Art. 17  illustrates  the evil repercussion of  the  doctrine  of waiver  in  its  impact on  the  fundamental  rights.   That Article in express terms forbids untouchability;  obviously, a   person  cannot  ask  the  State  to  treat  him  as   an untouchable.  Article 19 reads:- "(1) All citizens shall have the right- (a)  to freedom of speech and expression; (b)  to assemble peaceably and without arms; (c)  to form associations or unions; (d)  to move freely throughout the territory of India ; (e)to  reside  and settle in any part of  the  territory  of India; (f)  to acquire, hold and dispose of property ; and (g)  to  practice  any  profession,  or  to  carry  on   any occupation, trade or business." The right to freedom is the essential attribute of a citizen under democratic form of government.  The freedoms mentioned in Art. 19 are subject to certain restrictions mentioned  in cls.  (2)  to (6) of that Article.  So far as  the  freedoms narrated  in sub-cls. (a) to (g) of Cl. (1) of Art.  19  are concerned,  I  cannot  visualise  any  contingency  where  a citizen  would  be -in a worse position than he  was  if  he could  not  exercise  the right of  waiver.   In  regard  to freedom  to  acquire,  hold  and  dispose  of  property,   a plausible  argument may be advanced, namely, that a  citizen should have a right to waive his right to acquire, hold  and dispose  of property ; for, otherwise he might be  compelled to  acquire  and hold his property, even if he  intended  to give it up  There is an underlying fallacy in this argument. The Article does not compel a citizen to acquire, hold and 614 dispose of property just as it does not compel a per. son to do  any  of the acts covered by the other freedoms.   If  he does  not  want to reside in any part of  the  territory  of India or to make a speech or to practise any profession,  he is  at liberty not to do any of ,,these things.  So  too,  a person  may not acquire the property at all or practise  any profession  but if he seeks to acquire property or  practise any  profession,  he cannot be told that he has  waived  his right  at an earlier stage to acquire property  or  practise the  profession.  A freedom to do a particular act  involves the  freedom  not  to do that act.  There  is  an  essential distinction  between  the non-exercise of a  right  and  the

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exercise  of a right subject to the doctrine of waiver.   So understood, even in the case of the right covered by sub-cl. (f) of cl. (1), there cannot be any occasion when a  citizen would  be worse off than when he had no  fundamental  rights under  the  Article.  The preservation of the  rights  under Art.  19 without any further engrafting of  any  limitations than  those  already  imposed  under  the  Constitution,  is certainly  in the interest of the public ; for,  the  rights are  essential for the development of human  personality  in its diverse aspects.  Some comment is made in regard to  the right covered by el. (3) of Art. 20, and it is asked that if a  person has no liberty to waive the protection under  that clause, he could not give evidence even if he wanted to give it  in his own interest.  This argument ignores the  content of  the  right under cl. (3) of Art.  20.   The  fundamental right of a person is only that he should not be compelled to be a witness against himself.  It would not prevent him from giving evidence voluntarily.  Under Art. 21, no person shall be deprived of his life or personal liberty except according to procedure established by law and Art. 22 gives protection against  arrest  and detention in certain cases.  I  do  not think  that  any situation can be conceived  when  a  person could  waive  this right to his  advantage.   Article  23(1) prohibits traffic in human beings and forced labour.  It  is not  suggested that a person can waive  this  Constitutional protection.   So  too,  the  right  under  Art.  24,   which prohibits employment 615 of children in factories, cannot be waived.  That apart,  so far as this Article is concerned, no question of waiver  can arise as a child cannot obviously waive his right under this Article.   Article 25 gives guarantee for religious  liberty subject  to  certain  restrictions  contained  therein.   It declares  that all persons are  equally entitled  to freedom of conscience and the right freely to profess, practise  and propagate  religion.  This right is certainly  conceived  in the  public interest and cannot be waived.  So too,  freedom to manage religious affairs, freedom as to payment Of  taxes for  promotion of any particular religion and freedom as  to attendance at religious instruction or religious worship  in certain  educational  institutions  are  all  conceived   to enforce the religious neutrality of the State and it  cannot be  suggested  that they are not in  public  interest.   The cultural and educational rights of the minorities and  their right  to establish and administer educational  institutions of  their choice are given for the protection of the  rights of the minorities and it cannot be said that they are not in public interest.  Article 31, which prohibits the State from depriving a person of his property save by authority of  law or  to acquire any property without paying compensation,  is intended to protect the properties of persons from arbitrary actions  of  the State.  This Article is  conceived  in  the interest  of the public and a person cannot say that he  can be deprived of his property without authority of law or that his land can be acquired without compensation. It  is  suggested  that  if  a  person,  after  waiving  his fundamental  right  to property and allowing  the  State  to incur  heavy expenditure in improving the same, turns  round and claims to recover the said property, the State would  be put to irreparable injury.  Firstly, no such occasion should arise,  as the State is not expected to take  its  citizens’ property or deprive them of their property otherwise than by authority  of  law.  Secondly, if the owner  of  a  property intends to give it to the State, the State can always insist upon  conveying to it the said property in the manner  known

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to law.  Thirdly, other remedies may be open to the 616 recover   compensation  or  damages  for  the   improvements bonafide  made  or the loss incurred, having regard  to  the circumstances  of a particular case.  These  considerations, in my view, are of no relevance in considering the  question of waiver in the context of fundamental rights.  By  express provisions of the Constitution, the State is prohibited from making  any  law  which takes away or  abridges  the  rights conferred  by  Part III of the Constitution.  The  State  is not,  therefore, expected to enforce any right  contrary  to the Constitutional prohibition on the ground that the  party waived his fundamental right.  If this prohibition is  borne in  mind,  no occasion can arise when the’  State  would  be prejudiced.   The prejudice, if any, to the State  would  be caused not by the non-application of the doctrine of  waiver but  by  its  own  action  contrary  to  the  Constitutional prohibition imposed on it. It  is  then said that if the doctrine of waiver  is  to  be excluded, a person can apply to the Supreme Court under Art. 32  of  the Constitution for the  relief  provided  therein, withdraw  the petition, get the order of the  Supreme  Court dismissing it and then apply over again for issue of a  writ in respect of the same right.  The apprehension so expressed is  more  imaginary  than real; for, it  has  no  foundation either in fact or in law.  When an application is dismissed, for  whatever  reason  it may be-whether  on  merits  or  on admission-, the order of the Court becomes final and it  can be reopened only in the manner prescribed by law.  There  is no  scope for the application of the doctrine of  waiver  in such a cage. Articles  33  and  34 contain  some  of  the  Constitutional limitations  on the application and the enforcement  of  the fundamental  rights.  The former.  Article confers power  on Parliament to modify the rights conferred by Part III of the Constitution  in their application to facts and  the  latter enables  it to impose restrictions on the  rights  conferred by’ that Part, while martial law is in force in any area. These  two  Articles, therefore, do not  create  fundamental rights, but impose limitations thereon and I                     617 cannot  appreciate the argument that their presence in  Part III  either  derogates from the content of  the  fundamental rights  declared therein or sustains the doctrine of  waiver in  its application to the said rights.  Article 35  confers on the Parliament, the power to legislate for giving  effect to  the  provisions  of Part III  to  the  exclusion  of the Legislatures  of  the, States.  This Article also  does  not create  a  fundamental right, but provides a  machinery  for enforcing that right. A  startling  result, it is suggested, would flow  from  the rejection  of the doctrine of waiver and the  suggestion  is sought to be illustrated by the following example : A person takes a permit for several years from the State for  running a  motor  vehicle  or an excise shop.   Having  enjoyed  the benefit for several years and when action is proposed to  be taken against him to terminate the licence, he contends that the  law under which the permit was granted to him  offended his  fundamental rights and therefore  constitutionally  not valid.   It is asked whether it would be open to him to  say that the very Act under which the permit was granted to  him was  not valid in law.  To my mind, this  illustration  does not  give  rise to any anomaly.  Either a person can  run  a motor  vehicle  or an excise shop with  licence  or  without licence.  On the basis the law is valid, a licence is  taken

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and the motor vehicle is run under that licence and if  that law  offends  his fundamental right and therefore  void,  he continues to ran the business without licence, as no licence is  required under a valid law.  The aforesaid  illustration does not, there. fore, give rise to any anomaly and even  if it does, it does not affect the legal position. I  have  considered the various provisions relating  to  the fundamental  rights with a view to discover if there is  any justification  for the comment that without the aid  of  the doctrine  of  waiver a citizen,  in  certain  circumstances, would  be  in a worse position than that he would be  if  he exercised his right.  I have shown that there is none.   Nor is  there any basis for the suggestion that the State  would irreparably  suffer  under certain contingencies;  for,  any resulting hardship would be its 78 618 own  making and could be avoided if it acted  in  accordance with law. A  large  majority  of our  people  are  economically  poor, educationally backward and politically not yet conscious  of their  rights.   Individually  or  even  collectively,  they cannot  be  pitted  against  the  State  organizations   and institutions,  nor  can they meet them on equal  terms.   In such circumstances, it is the duty of this Court to  protect their  rights  against themselves.  I  have,  therefore,  no hesitation in holding that the fundamental rights created by the Constitution are transcendental in nature, conceived and enacted  in  national  and public  interest,  and  therefore cannot be waived. That apart, I would go further and hold that as section 5(1) of the Act XXX of 1947 was declared to be void by this Court in M. Ct.  Muthiah v. The Commissioner of Income-tax, Madras (1),  the  appellant  can. not, by the  application  of  the doctrine of waiver, validate the enquiry made under the said Act.  It is suggested that there is a distinction between  a case   where  the  enactment  is  beyond   the   legislative competence  Of  the Legislature which made it and  the  case where the law is unconstitutional on the ground of existence of  a  constitutional limitation, that while in  the  former case the law is null and void, in the latter case the law is unenforceable  and  may  be revived by the  removal  of  the limitation  by  an amendment of the Constitution.   On  this distinction an argument is sought to be built to the  effect that  as in the present case s. 5(1) of the Act XXX of  1947 was  declared to be invalid only on the ground that  it  was hit  by Art. 14 of the Constitution, the law must be  deemed to  be on the statute book and therefore the  appellant  was within  his right to waive his constitutional guarantee.   I am unable to appreciate this, argument. The  scope of Art. 13(1) of the Constitution was  considered by  this  Court in Keshavan Madhava Menon v.  The  state  of Bombay  (2).  This Court by a majority held that Art.  13(1) of the Constitution does not make (1) [1955] 2 S.C.R. 1247. (2) [1951] S.C.R. 228. 619 existing  laws which are inconsistent with  the  fundamental rights,   void  ab  initio,  but  only  renders  such   laws unenforceable  and void with respect to the exercise of  the fundamental rights on and after the date of commencement  of the  Constitution.  Mahajan, C. J., who was a party to  that decision,  explained  the word ,void’ in Art. 13(1)  of  the Constitution in Behram Khurshed Pesikaka v. State of  Bombay (1).  He observed at page 652 thus:-

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" It is axiomatic that when the law-making power of a  State is  restricted  by  written fundamental law,  then  any  law enacted  and opposed to the fundamental law is in excess  of the legislative authority and is thus a nullity.  Both these declarations  of unconstitutionality go to the root  of  the power itself and there is no real distinction between  them. They represent but two aspects of want of legislative power. The   legislative   power  of  Parliament  and   the   State Legislatures  as  conferred  by Arts. 245  and  246  of  the Constitution  stands  curtailed by  the  fundamental  rights Chapter of the Constitution." This decision in clear and unambiguous terms lays down  that there  cannot  be  any  distinction  on  principle   between Constitutional  incompetency and Constitutional  limitation. In either case, the Act is void, though in the latter  case, the pre-constitutional rights and liabilities arising  under the  statute  are saved.  This Court again  dealt  with  the meaning  of  the word  void’ in Bhikaji  Narain  Dhakras  v. State of Madhya Pradesh (2).  There the question was whether an Act ’Which was declared void on the ground of  inconsist- ency with the Constitution, can be revived by any subsequent amendment  to the Constitution removing  the  inconsistency. This  Court answered the question in the affirmative.   Das, acting C.; J., observed at page 598 thus:- "  As  explained in Keshavan Madhava Menon’s case,  the  law became void not in toto or for all purposes or for all times or  for  all  persons  but  only  to  the  extent  of   such inconsistency  that  is  to,say, to the  extent,  it  became inconsistent with the provisions of Part (1) [1955] 1 S. C. R. 613. (2) [1955] 2 S. C. R. 589. 620 III which conferred the fundamental rights on the  citizens. It did not become void independently of the existence of the rights guaranteed by Part III...... In Short, Article  13(1) had  the effect of nullifying or rendering the existing  law which  had become inconsistent with Art. 19(1)(g) read  with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with the  exercise of  the  fundamental  right on and after  the  date  of  the commencement of the Constitution..................... It  is only as against the citizens that they remained in a dormant or moribund condition.  In our judgment, after the amendment of  clause  (6)  of  Art. 19 on the  18th  June,  1951,  the impugned  Act  ceased  to  be  unconstitutional  and  became revivified  and  enforceable  against citizens  as  well  as against non-citizens." This  judgment  does not say anything  different  from  that expressed  in Keshavan Madhava Menon’s case (1) nor does  it dissent from the view expressed by Mahajan, C. J., in Behram Khurshed’s  case  (2).   The  problem  that  confronted  the learned  Judges was a different one and they resolved it  by applying  the  doctrine of "eclipse’.  The  legal  position, vis-a-vis, the law declared to be void either on the  ground of  legislative incompetence or for the reason of  constitu- tional  limitation,  as  stated in  the  earlier  decisions, -remains  unshaken  by  this  decision.   So  long  as   the inconsistency  remains the law continues to be void, at  any rate  vis-a-vis the fundamental rights of a person.  We  are not concerned in this case with the doctrine of revival; for the inconsistency of s. 5(1) of the Act with the fundamental right under Art. 14 of the Constitution has not been removed by any amendment of the Constitution.  So long as it is  not done,  the  said  section  is void  and  cannot  affect  the fundamental  rights of the citizens.  In M. Ct.  Muthiah  v.

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The Commissioner of Income-tax, Madras (3), it was  declared that s. 5(1) of Act XXX of 1947 was unconstitutional on  the ground  that  it  infringed the fundamental  rights  of  the citizens under Art. 14 of the Constitution. (1) [1951] S.C.R. 228.            (2) [1955] 1 S.C.R. 613. (3)  [1955] 2 S.C.R. 1247. 621 Under Art. 141 of the Constitution, the law declared by  the Supreme  Court  is binding on all the Courts in  India.   It follows that the Income-tax Commissioner had no jurisdiction to continue the proceedings against the appellant under  Act XXX  of 1947.  If the Commissioner had no jurisdiction,  the appellant could not by waiving his right confer jurisdiction on him. The  scope of the doctrine of waiver was considered by  this Court  in  Behram Khurshed’s case(1).  There  a  person  was prosecuted  for  an  offence under s. 66(b)  of  the  Bombay Prohibition Act and he was sentenced to one month’s rigorous imprisonment.  One of the questions raised there was whether s. 13(b) of the Bombay Prohibition Act, having been declared to be void under Art. 13(1) of the Constitution in so far as it  affected the consumption or use of liquid  medicinal  or toilet  preparation containing alcohol, the prosecution  was maintainable  for infringement of that section.   The  Court held  that  in India once the law has been  struck  down  as unconstitutional  by  the Supreme Court, no  notice  can  be taken  of it by any Court, because, after it is declared  as unconstitutional, it is no longer law and is null and  void. Even  so, it was contended that the accused had  waived  his fundamental  right  and therefore he could not  sustain  his defence.   Mahajan,  C. J., delivering the judgment  of  the majority,  repelled  this  contention  with  the   following observations at page 653:- "  The  learned Attorney General when questioned  about  the doctrine  did  not seem to be very  enthusiastic  about  it. Without  finally expressing an opinion on this  question  we are  not for the moment convinced that this theory  has  any relevancy in construing the fundamental rights conferred  by Part  III  of our Constitution.  We think  that  the  rights described as fundamental rights are a necessary  consequence of the declaration in the preamble that the people of  India have solemnly resolved to constitute India into a  sovereign democratic  republic  and  to secure  to  all  its  citizens justice,  social,  economic  and  political  ;  liberty  ,of thought, expression, belief, faith and worship; (1)  [1955] 1 S.C.R. 613. 622 equality  of status and of opportunity.   These  fundamental rights have not been put in the Constitution merely for  the individual   benefit  though  ultimately  they   come   into operation in considering individual rights.  They have  been put  there as a matter of public policy and the doctrine  of waiver  can have no application to provisions of  law  which have  been  enacted as a matter  of  Constitutional  policy. Reference  to  some of the articles,  inter  alia,  Articles 15(1) 20, 21, makes the proposition quite plain.  A  citizen cannot  get  discrimination by telling the  State  ’You  can discriminate’,  or get convicted by waiving  the  protection given  under Articles 20 and 21." On  the  question of waiver, Venkatarama Aiyar, J.,  in  his judgment  before review, considered the  American  decisions and   was  inclined  to  take  the  view  that   under   our Constitution when a law contravenes the provisions  intended for  the benefit of the individual, it can be  waived.   But the  learned  Judge made it clear in his judgment  that  the

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question  of  waiver  had no bearing to any  issue  of  fact arising for determination in that case but only for  showing the nature of the right declared under Art. 19(1)(f) and the effect in law of a statute contravening it.  Das, J., as  he then was, in his dissenting judgment, did not state his view on this question but expressly reserved it in the  following words:- " In coming to the conclusion that I have, I have in a large measure  found  myself  in  agreement  with  the  views   of Venkatarama  Aiyar,  J.,  on  that part  of  the  case.   I, however, desire to guard myself against being understood  to agree  with the rest of the observations to be found in  his judgment,   particularly   those  relating  to   waiver   of ’unconstitutionality,  the fundamental rights being  a  mere check  on  the  legislative  power  or  the  effect  of  the declaration  under Art. 13(1) being  relatively  void’.   On those topics prefer to express no opinion on this occasion." I respectfully agree with the observations of Mahajan, C. J. For the aforesaid reasons,  hold that the doctrine of waiver has  no application in the case of fundamental rights  under our Constitution.                     623                    ORDER The  appeal  is  allowed.   The  order  of  the  Income  Tax Commissioner,  Delhi, dated January 29, 1958, is  set  aside and  all proceedings now pending for implementation  of  the order  of Union Government dated July 5, 1954, are  quashed. The appellant shall get costs of this appeal.