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PETITIONER: THE STATE OF GUJARAT AND ANOTHER

       Vs.

RESPONDENT: SHRI AMBICA MILLS LTD., AHMEDABAD, ETC.

DATE OF JUDGMENT26/03/1974

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ) KHANNA, HANS RAJ CHANDRACHUD, Y.V. ALAGIRISWAMI, A.

CITATION:  1974 AIR 1300            1974 SCR  (3) 760  1974 SCC  (4) 656  CITATOR INFO :  R          1975 SC 511  (17)  RF         1975 SC 583  (37,39)  F          1975 SC 594  (8)  F          1975 SC1030  (11)  RF         1976 SC 490  (22,23)  R          1978 SC 803  (30)  RF         1978 SC1296  (49)  RF         1979 SC  25  (35,40)  E&R        1979 SC 478  (72,122,133,134)  R          1980 SC 738  (9)  R          1981 SC1829  (35)  D          1982 SC 149  (972)  R          1984 SC1130  (46)  R          1989 SC 100  (31)  R          1990 SC1637  (21)

ACT: Constitution  of India, 1950, Art. 13--Legislation  void  in relation to citizens as violating Art. 19--If corporation, a non-citizen, can contend that law is non-est. Bombay Labour Welfare Fund Act, 1953, as amended by  Gujarat Amendment  Act,  1961  s.  2(4)--’Establishment’  definition of--If violates Art. 14.

HEADNOTE: After the State of Bombay was bifurcated the legislature  of the State of Gujarat enacted the Bombay Labour Welfare  Fund (Gujarat Extension and Amendment) Act, 1961, making  various amendments in the Bombay Labour Welfare Fund Act, 1953.  The 1953-Act  was  passed  with  a  view  to  provide  for   the constitution   of  a  fund  for  financing  activities   for promoting  the  welfare of labour in the  State  of  Bombay. Section  3  as amended, provides that the  State  Government shall  constitute a fund called the Labour Welfare Fund  and that  the  fund shall consist of. among  other  things,  all unpaid    accumulations.    Sec.   2(10)   defines    unpaid accumulations  as meaning all payments due to the  employees but not made to them within a period of three years from the date  on which they became due whether before or  after  the

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commencement of the Act including wages and gratuity legally payable.   Sec.  6A(1) provides  that  unpaid  accumulations shall be deemed to be abandoned property and that the Board, constituted under the Act, shall take them over.  As soon as the  Board  takes over the unpaid accumulations,  notice  as provided  in  the  section, will have to  be  published  and claims  invited.  Sub-section 3 to 6 provide for notice  and sub-ss.  7 to 11 lay down the machinery for adjudication  of claims  which might be received in response to  the  notice. It  is only if no claim is made for a period of  four  years from the date of the, publication of the first notice, or if a  claim  is made but rejected wholly or in part,  that  the State   appropriates  the  unpaid  accumulation,   as   bona vacantia. Section  2(4)  of the Act defines  ’establishment’  and  the definition  includes  factories, tramway  or  motor  omnibus services   and   any   establishment   carrying   government establishments  carrying on business or trade.   Demand  for the payment ofthe unpaid accumulations having been made the respondents filed petitions inthe      High       Court challenging various provisions of the Act and the High Court held  that  s.  3(1),  in so far as  it  relates  to  unpaid accumulations specified ins. 3 (2) (b), 3 (4) and 6A  of the Act, and rules 3 and 4 of the rules made thereunder  are unconstitutional  and  void on the grounds :  (i)  that  the impugned  provisions  violated  the  fundamental  rights  of citizen-employers  and  employees under  Art.  19(1)(f)  and therefore were void under Art. 13(2) and hence there was  no law and the demands were thus without the authority of  law; and (2) that discrimination was writ large in the definition of ’establishment’. Allowing the appeal to this Court, HELD : (1)(a) Unpaid accumulations represent the obligations of the employers to the employees and they are the  property of the employees.  In other words, what is being treated  as abandoned  property  under  6A  is  the  obligation  to  the employees  owed by the employers and which is property  from the standpoint of the employees. [771 A-B] 761 (b) At common law, abandoned personal property could not  be the  subject of escheat.  It could only be  appropriated  as bona  vacantia.  Under the Act, though unpaid  accumulations are deemed to be abandoned property under s. 6A(1) they  are appropriated as bona vacantia only after claims are  invited and disposed of. [770 G-771A] (c)  If unpaid accumulations are not claimed within a  total period  of  7  years  the inactivity  on  the  part  of  the employees    would   furnish   adequate   basis   for    the administration  by  the State of the  unasserted  claims  or demands.   It  cannot  be said that the period  of  7  years allowed to the employees for the purpose of claiming  unpaid accumulations is an unreasonably short one which will result in  the  infringement of any constitutional  rights  of  the employees. [771E] (d)  There is no reason to think that the State will be.  in fact  less able or less willing to pay the amounts  when  it has taken them over. [771E-F] (e) It cannot also be assumed that the mere substitution  of the State as the debtor will deprive the employees of  their property  or  impose on them  any  unconstitutional  burden. [771F] (f)  Since the employers are the debtors of  the  employees, they can interpose noobjection if the State is  lawfully entitled to demand the payment, for in thatcase payment of the  debt  to  the  State under  the  statute  releases  the

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employers  of  their liability to the employees.   When  the moneys representing the unpaid accumulations are paid to the Board the liability of the employers to make payment to  the employees in, respect of their claims against the  employers would be discharged to the extent of the amount paid to  the Board, and on such liability being transferred to the Board, the  debts  or claims to that extent  cannot  thereafter  be enforced against the employers. [771D, G] (g)  As regards notice, all persons having property  located within a state and subject to its dominion must take note of its  statutes  affecting  control and  disposition  of  such property  and the procedure prescribed for  those  purposes. The  various  modes  of  notice  prescribed  in  s.  6A  are sufficient  to give reasonable information to the  employees to come forward and claim the amount if they really want  to do so. [771G-H] In the absence of a showing of injury, actual or threatened, there  could  be  no  constitutional  argument.   therefore, against  the taking over of the unpaid accumulations by  the State. [771F-G] (2)  But assuming that the impugned provisions  abridge  the fundamental rights of citizen-employers or citizen-employees under Art. 19(1)(f), the respondent, a corporation and hence a non-citizen employer, could not claim (i) that the law was void as against non-citizen employers also under Art. 13(2), and  (ii) that since a void law is a nullity, the  privation of its property was without the authority of law. [772D] (a)  It is settled that a Corporation is not a  citizen  for the  purposes of Art. 19 and has, therefore  no  fundamental right under that Article. [772E] Tata  Engineering and Locomotive Co. Ltd. v. State of  Bihar and  others, [1964] 6 S.C.R. 885, R. C. Cooper v.  Union  of India,  [1970] 2 S.C.R. 530 and Bennett Coleman & Co.,  etc. v. Union of India and Others [1972] 2 S.C.C. 788, followed. (b) Courts should not adjudge on the constitutionality of  a statute except when they are called upon to do so when legal rights  of the litigants are in actual controversy;  and  as part  of  this rule, is the principle that one to  whom  the application of a statute is constitutional will not be heard to  attack the statute on the ground that, it must  also  be taken as applying to other persons to whom or situations  in which, its application may be unconstitutional. [771 H-772B] United States v. Rainas, 362 U.S. 17, referred to. 762 (c) The same scheme permeates both the sub-articles of  Art. 13, namely, to make the law void in Art. 13(1) to the extent of  the  inconsistency with the fundamental rights,  and  in Art.  13(2)  to  the extent of the  contravention  of  those rights.  In other words, the voidness is not in rein but  to the  extent  only of inconsistency or contravention  as  the case  may  be,  of  the rights  conferred  under  Part  III. Therefore, when Art. 13(2) uses the expression ’void, it can only  mean void as against persons whose fundamental  rights are taken away or abridged by a law. [777G-H] (d) If a pre-constitutional law which takes away or abridges the  rights under Art. 19 could remain operative even  after the  Constitution came into force as  regards  non-citizens, there is no reason why a post-constitutional law which takes away  or abridges them should not be operative  as  respects noncitizens, if the meaning of the word ’void’ in Art. 13(1) is the same as its meaning in Art. 13(2).  The reason why  a pre-constitutional  law remains ,operative as  against  non- citizens  is that it is void only to the extent of  its  in- consistency with the rights conferred under Art. 19 and that its  voidness  is, therefore, confined to citizens,  as,  ex

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hypothesi the law became inconsistent with their fundamental rights alone.  Art. 13(2) is an injunction to the State  not to pass any law which takes away or abridges the fundamental rights  conferred  by Part III and the  consequence  of  the contravention  of the injunction is that the, law  would  be void to the extent of the contravention.  The expression ’to the extent of the contravention’ in the sub-article can only mean  to  the  extent of the  contravention  of  the  rights conferred  under  that Part.  Rights always inhere  in  some person  whether  natural  or  juridical.   Just  as  a  pre- constitutional law taking away or abridging the  fundamental rights   under   Art.  19  remains   operative   after   the Constitution  came into force as respects of noncitizens  as it is not inconsistent that their fundamental rights so also a   postconstitutional  law,  offending  Art,  19,   remains operative   as  against  non-citizens  as  it  is   not   in contravention  of any of their fundamental rights.  The  law might  be  still-born  so far as the  persons,  entities  or denominations  whose  fundamental rights are taken  away  or abridged; but there is no reason why the law should he  void or  still-born  as  against those who  have  no  fundamental rights. 777B-D, E-G, H-778A] (e) It could not be said that the expression ’to the  extent of  the contravention’ mean only that part of the law  which contravenes  the fundamental right would alone be  void  and not  the  other  parts  which do  not  so  contravene.   The expression  ’any  law’ occurring in the latter part  of  the sub-article  must necessarily refer to the same  expression, in  the former part and, therefore, the  Constitution-makers have  already made it clear that the law that would be  void is  only  the law which contravenes the  fundamental  rights conferred by Part III; and, so, the phrase ’to the extent of the  contravention’  can  mean only to  the  extent  of  the contravention of the rights conferred.  When it is seen that the  latter  part of the sub-article is concerned  with  the effect  of the violation of the injunction contained in  the former part, the words ’to the extent of the  contravention’ can  only refer to the rights conferred under Part  III  ind denote only the compass of voidness with respect to  persons or  entities resulting from the contravention of the  rights conferred   upon   them,  There  is  no   reason   why   the Constitution-makers wanted to state that the other  sections which  did not violate the fundamental rights would  not  be void.   Besides.  any such categorical  statement  would  be wrong  as  the  other sections might be  void  if  they  are inseparably knitted to the void one. [778A-G] (f)  Assuming that this Court has rejected  the  distinction between  legislative incapacity arising from lack  of  power under the relevant legislative entry and that arising from a check  upon legislative power on account  of  constitutional provisions like fundamental rights, it does not follow  that if the law enacted by the legislature having no capacity  in the  former  sense would be void in rem a law  passed  by  a legislature  having  no legislative capacity in  the  latter sense should also be void in rem, because : [778G-H] (i)  If  on  a textual reading of  Art.  13  the  conclusion reached namely, that a law passed by a legislature having no legislative capacity in the latter sense 763 is only void qua those persons whose fundamental rights  are taken away or abridged, is the only reasonable one, there is no  need to consider whether that. conclusion could  not  be arrived  at except on the basis of such a distinction;,  and (ii)  Further, there is nothing strange in the notion  of  a legislature having no inherent legislative capacity or power

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to  take  away  or abridge by law  the:  fundamental  rights conferred  on citizens and yet having legislative  power  to pass  the  same law in respect of non-citizens who  have  no such  fundamental rights to be taken away or  abridged.   In other  words,  the legislative incapacity  subjectwise  with reference to Arts. 245 and 246 in this context would be  the taking away or abridging by law the fundamental rights under Art. 19 of citizens. [779A-E] M. P. V. Sundararamaier v. State of A.P. (1958) S.C.R. 1422, referred. to. (g)  The  expression "that State shall not make any  law  in Art.  13(2) is no doubt a clear mandate of  the  fundamental law  of  the  land  and, therefore,  it  is  case  of  total incapacity and total want of power.  But the mandate is that the  State  shall  not  make any law  which  takes  away  or abridges the rights conferred by Part III.  If no rights are conferred  under Part III upon a person, or, if  rights  are conferred,  but they are not taken away or abridged  by  law there  could not be incapacity of the legislature to make  a law.  If a law is otherwise good and does not contravene any of   their  fundamental  rights,  noncitizens  cannot   take advantage of the voidness of the law for the reason, that it contravenes  the  fundamental rights of citizens  and  claim that  there is no law at ail.  Such a proposition would  not violate  any principle of equality before the law,  because, citizens  and  non-citizens are not  similarly  situated  as citizens have certain fundamental rights which  non-citizens have not. [779 B-D; 780 D-E] Keshava Madhava Menon v. State of Bombay, [1951] S.C.R. 228, Bahran Khurshed Pesikake v. State of Bombay. [1955] I S.C.R. 613,  Bhikhali  Narain  Uhakras v. State of  M.P.  [1955]  2 S.C.R.  589, M. P. V. Sundaramaier v. State of A.P.,  [1958] S.C.R. 1422. Deep Chand v. State of U.P. and Others,. [1959] Supp.  2 S. C. R. 8, Mahendra Lal Jaini’s case [1963]  Supp. I  S.  C. R. 912 and Jagannath v. Authorizcd  Officer,  Land Reforms, [1971] 2 S.C.C. 893, referred to. (h)  Therefore,  even assuming that under Art.  226  of  the Constitution  the respondent was entitled to move  the  High Court  and  seek a remedy for infringement of  its  ordinary right  to  property, the impugned provisions  could  not  be treated as non-est. and the respondent cannot take the  plea that his rights to property are being taken away or abridged without the authority of law. [772 H-773 A] (3)  The definition of ’establishment’ in S. 2(4)  does  not violate  Art. 14 and does not make the  impugned  provisions void. (a)  The  equal protection of the laws is a  pledge  of  the protection  of  equal laws.  But courts  have  resolved  the contradictory  demands  of  legislative  specialisation  and constitutional  generality  by the  doctrine  of  reasonable classification. [782 B-C] (b)  A reasonable classification is one which  includes  all who  are  similarly  situated, and none who  are  not,  with respect to the purpose of the law [782 C-D] (c)   A classification is under-inclusive when all  who  are included  in  the class are tainted with the  mischief,  but there are others also tainted whom the, classification  does not  include.   A classification is over-inclusive  when  it includes  not  only those who are  similarly  situated  with respect  to  the  purpose but also others  who  are  not  so situated. [782 D-F] (d)  The  Court has recognised the  very  real  difficulties under which legislatures operate difficulties arising out of both  the  nature  of the legislative  process  and  of  the society  which legislation attempts perennially  to  reshape

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and  it  has  refused to strike  down  indiscriminately  all legislation embodying- 764 classificatory   inequality   like  the   one   here   under consideration.  The legislature cannot be required to impose upon  administrative agencies tasks which cannot be  carried out  or  which  must be carried out on a large  scale  at  a single stroke.  The piecemeal approach to a general  problem permitted  by under-inclusive classifications  is  justified especially  when it is considered that  legislation  dealing with such problems is usually an experimental matter.  It is impossible to tell how successful a particular approach  may be, what dislocation may occur, what evasions may develop or what  new  evils  might  be generated  in  the  attempt.   A legislation may take one step at a time addressing itself to the  Phase  of  the problem which seems most  acute  to  the legislative  mind.   Therefore, a legislature  might  select only  one  phase of one field for application of  a  remedy. Once  an objective is decided to be within  the  legislative competence  the working out of classification should not  be impeded  by judicial negatives.  The courts attitude  cannot be  that the state either has to regulate all businesses  or even  all related businesses and in the same way, or not  at all.  The court must be aware of its own remoteness and lack of  familiarity with the local problems.  Classification  is dependent on the particular needs and specific  difficulties of the community which are beyond the easy ken of the court, and  which  the  legislature alone was  competent  to  make. Consequently,  lacking the capacity to inform  itself  fully about  the peculiarities of a particular local situation,  a court should hesitate to dub the legislative  classification as irrational.[782 H-783 G;784  A-D;  786  G-H;  787   A] Missouri, K&T. Rly. v. May, [1904] 194 U.S.267, 269,  West Coast  Hotel   Company v. Parrish , 300 U.S. 379,  400,  Two Guys  from  Harrison-Allentown v. Mc Ginley 366,  U.S.  582, 592,  Mutual Loan Co. v. Martell, 56 L.Ed. 175, 180,  Tianer v. Texas 310 U.S. 141 and Carmichel v. Southern Coal &  Coke Co., 201.  U.S. 495, referred to. (e) The question whether, under Art. 14, a classification is reasonable  or unreasonable must, in the  ultimate  analysis depend upon the judicial approach to the problem.  The  more complicated  society becomes, the greater the  diversity  of its problems and the more does legislation direct itself  to the  diversities.   In  the  utilities,  tax  and   economic regulation cases, there are good reasons for judicial  self- restraint if not official deference to legislative judgment. The  Courts  have  only  the power to  destroy  but  not  to reconstruct.   When  to  this are added  the  complexity  of economic  regulation,  the  uncertainty,  the  liability  to error,  the  bewildering conflict of the  experts,  and  the number  of  times the judges have been overruled  by  events self  limitation  can  be seen to be the  path  to  judicial wisdom and institutional prestige and stability. [784  F-785 D] (f)  Laws  regulating  economic activity  should  be  viewed differently  from  laws which touch and concern  freedom  of speech and religion, voting procreation, rights with respect to   criminal   procedure  etc.    Judicial   deference   to legislature in instances of economic regulation is explained by the argument that rationality of a classification depends upon  local  conditions  about which  local  legislative  or administrative bodies would be better informed than a court. [784 D-E; 786 A] (g)  In the present case, the purpose of the Act is  to  get unpaid accumulations for utilising them. for the welfare  of

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labour  in  general.   It is from  the  factories  that  the greatest  amount of unpaid accumulations could be  collected and  since the factories are bound to maintain records  from which  the  amount of unpaid accumulations could  be  easily ascertained the legislature brought all the factories within the definition of ’establishment’.  It then addressed itself to  other  establishments but  thought  that  establishments employing  less than 50 persons need not be  brought  within the  purview  of the definition as unpaid  accumulations  in those  establishments  would  be  less  and  might  not   be sufficient to meet the administrative expenses of collection and  as many of them might not be maintaining  records  from which   the   amount  of  unpaid  accumulations   could   be ascertained.   Administrative convenience in the  collection of unpaid accumulations is a factor to be taken into account in adjudging whether the classification is reasonable.   The reason  why government establishments other  than  factories were not included in the definition is that there are hardly any  establishments run by the Central or  State  Government [783 F-G; 785E-H; 786 A-B] (h)  The  justification  for including  tramways  and  motor omnibuses  within the purview of the definition is that  the legislature of the State of Bombay, when it 765 enacted the Act in 1953, must have had reason to think  that unpaid  accumulations  in  these concerns  would  be  large, because,  they  usually employed a. large amount  of  labour force’  and  they were bound to keep records  of  the  wages earned and paid. [786 C-D] (i)  Whether  a court can remove the  unreasonablenss  of  a classification  when it is under-inclusive by extending  the ambit  of the legislation to cover the class omitted  to  be included, or by applying the doctrine of severability delete a  clause which makes a classification  over-inclusive,  are matters  on which it is not necessary to express  any  final opinion  because the inclusion of tramway or  motor  omnibus service  in the definition of ’establishment’ does not  make the classification unreasonable having regard to the purpose of the legislation. [788 A-C]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  1931  to 1933/68. From the, Judgment and Order dated the 19th/20th/21st day of July  1965 of the Gujrat High Court at Ahmedabad in  Special Civil Application Nos. 579 to 581 of 1963. Civil Appeal No. 2271 of 1968. From the judgment and order dated the 19th/20th/21st day  of July 1965, of the Gujarat High Court at Ahmedabad in Special Civil Application No. 836 of 1962. Civil Appeals Nos. 492 to 512 of 1969. From the Judgment and order dated the 21st July, 1965 of the Gujarat High Court at Ahmedabad in Special Civil Application Nos. 1069/62, 20, 21, 40, 49, 476, 699, 574 of 1963, 1070 to 1075  of  1962, 1086 to 1089 of 1962, 516, 727  and  728  of 1963. Civil Appeals Nos. 1114 to 1129 of 1969. From the judgment and order dated the 21st July, 1965 of the Gujarat High Court in Special Civil Applications Nos. 458 to 473 of 1963. S.  T.  Desai,  S.  K. Dholakia and S.  P.  Nayar,  for  the appellants. (In all the appeals). V. B. Patel, D. N. Misra, J. B. Dadachanji, O. C. Mathur and

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Ravinder  Narain,  for respondent no.  I (in  C.  As.  1115, 1118, 1125/ 69). Ram Punjwani, P. C. Bhartari, J. B. Dadachanji, O. C. Mathur and  Ravinder  Narain,  for  respondent  no.   I  (in   C.A. 1931/68). P. C. Bhartari, J. B. Dadachanji, O. C. Mathur and  Ravinder Narain,  respondent no.  I (in C. As.  1931-33/68,  492-494, 497, 499, 500-502, 504-507, 511-512/69, 1117, 1122, 1124 and 1126-27/69). M. C. Setalvad, V. B. Patel and 1. N. Shroff, for respondent no.  I (in C.A. 2271/68). V.  B.  Patel and 1. N. Shroff, for respondent  no.   I  (In C.As. 1 1 14, 1116,1119 and 1128/69). M. C. Bhandare and M. N. Shroff, for intervener. The Judgment of the Court was delivered by MATHEW,  J.-The  facts are similar in all these  cases.   We propose  to  deal with Civil Appeal No. 2271 of  1968.   The decision there will dispose of the other appeals. The  first  respondent,  a  company  registered  under   the Companies  Act, filed a Writ petition in the High  Court  of Gujarat.  In that 766 petition it impugned the provisions of sections 3, 6A and  7 of  the  Bombay Labour Welfare Fund Act,  1953  (hereinafter referred  to  as  the Act) and s. 13 of  the  Bombay  Labour Welfare  Fund  (Gujarat Extension and Amendment)  Act,  1961 (hereinafter  referred  to as the First Amendment  Act)  and rules 3 and 4 of the Bombay Labour Welfare Fund Rules,  1953 (hereinafter  referred to as tie Rules) as  unconstitutional and prayed for the issue of a writ in the nature of mandamus or   other  appropriate  writ  or  direction   against   the respondents  in the writ petition to desist  from  enforcing the  direction  in  the I notice dated  August  2,  1962  of respondent  No.  3  to  the  writ  petition  requiring   the petitioner-1st  respondent to pay the  unpaid  accumulations specified therein. The High Court held that s. 3 (1) of the Act in so far as it relates  to unpaid accumulations specified in s. 3 (2)  (b), s. 3 (4) and s. 6A of the Act and rules 3 and 4 of the Rules was unconstitutional and void. In  order to appreciate the controversy, it is necessary  to state   the  background  of  the  amendment  made   by   the Legislature  of Gujarat in the Act.  The Act was  passed  by the  legislature of the then State of Bombay in 1953 with  a view to provide for the constitution of a fund for financing the  activities for promoting the welfare of labour  in  the State  of Bombay.  Section 2(10) of the Act defined  "unpaid accumlation"  as meaning all payments due to  the  employees but  not made to .them within a period of three  years  from the  date on which they became due, whether before or  after the  commencement  of  the  Act,  including  the  wages  and gratuity  legally payable, but not including the  amount  of contribution,  if any, paid by any employer to  a  Provident Fund  established under the Employees’ Provident  Fund  Act, 1952.  Section 3(1) provided that the State Government shall constitute  a fund called the Labour Welfare Fund  and  that notwithstanding anything contained in any other law for  the time  being in force, the sums specified in  subsection  (2) shall, subject to the provisions of sub-section (4) and sec- tion  6A be paid in to the fund.  Clause (b) of  sub-section (2)  of  s. 3 provided that the Fund shall consist  of  "all unpaid accumulations".  Section 7(1) provided that the  fund shall  vest  in  and be applied by  the  Board  of  Trustees subject  to the provisions and for the purposes of the  Act. Section 19 gave power to the State Government to make  rules

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and in the exercise of that power, the State Government made the  Rules.   Rules  3 and 4  concerned  the  machinery  for enforcing  the provisions of the Act in regard to fines  and unpaid accumulations. In  Bombay Dyeing & Manufacturing Co. Ltd. v. The  State  of Bombay and Others(1) this Court held that the provisions  of sections  3(1) and 3(2)(b) were invalid on the  ground  that they  violated the fundamental right of the  employer  under article  19(1)(f).  The reasoning of the Court was that  the effect of the relevant provisions of the Act was to transfer to the Board the debts due by the employer to the  employees free  from  the bar of limitation  without  discharging  the employer from his liability to the employees and that s.3(1) therefore  operated to take away the moneys of the  employer without  releasing him from his liability to the  employees. The Court also (1) [1958] S.C.R. 1122 767 found that there was no machinery provided for  adjudication of the claim of the employees when the amounts were required to be paid to the fund. The State sought-to justify the provisions of the Act as one relating to abandoned property and, therefore, by their very nature, they could not be held to violate the rights of  any person  either  under article 19(1) (f) or  article,  31(2). The  Court  did not accept the contention of the  State  but held  that  the  purpose of a legislation  with  respect  to abandoned property being in the first instance to  safeguard the  property  for the benefit of the true  owners  and  the State taking it over only in the absence of such claims, the law which vests the property absolutely in the State without regard to the claims of the true owners cannot be considered as one relating to abandoned property. On May 1, 1960, the State of Bombay was bifurcated into  the States  of  Maharashtra  and Gujarat.   The  legislature  of Gujarat  thereafter  enacted to First Amendment  Act  making various   amendments   in  the  Act,  some  of   them   with retrospective effect.  The First Amendment Act was  intended to  remedy the defects pointed out in the decision  of  this Court  in  the Bombay Dyeing Case(1).  The preamble  to  the First  Amendment  Act  recites  that  "it  is  expedient  to constitute a Fund for the financing of activities to promote welfare  of labour in the State of Gujarat,  for  conducting such  activities and for certain other  purposes".   Section 2(2) defines ’employee’.  Section 2(3) defines ’employer’ as any  person who employs either directly or  through  another person either on behalf of himself or any other person,  one or  more employees in an establishment and includes  certain other  persons.   Section 2(4) defines  ’establishment’  and that sub-section as amended reads :-               "2(4) ’Establishment’ means               (i) A factory;               (ii) A Tramway or motor omnibus service; and               (iii)  Any establishment including  a  society               registered  under the  Societies  Registration               Act,  1960, and a charitable or  other  trust,               whether  registered  under the  Bombay  Public               Trusts Act, 1950, or not, which carries on any               business  or trade or any work  in  connection               with or ancillary thereto and which employs or               on any working day during the preceding twelve               months  employed more than fifty persons;  but               does not include an establishment (not being a               factory)   of   the  Central  or   any   State               Government."

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             Sub-section  (10)  of  s.  2  defines  ’unpaid               accumulations’               "unpaid accumulations’ means all payments  due               to the employees but not made to them within a               period  of three years from the date on  which               they  became due whether before or  after  the               commencement  of this Act including the  wages               and gratuity legally payable but not including               the amount of contribution if any, paid by  an               employer to a (1) [1958] S.C.R. 1122. 768               provident    fund   established   under    the               Employees’ Provident Funds Act 1952". Section 3 is retrospectively amended and the amended section it  its  material part provides that  the  State  Government shall  constitute a fund called the Labour Welfare Fund  and that  the  Fund shall consist of, among  other  things,  all unpaid  accumulations.  It provides that the sums  specified shall  be collected by such agencies and in such manner  and the accounts of the fund shall be maintained and audited  in such  manner  as  may be prescribed.   The  section  further provides that notwithstanding anything contained in any  law for  the time being in force or any contract or  instrument, all unpaid accumulations shall be collected by such agencies and  in such manner as may be prescribed and be paid in  the first  instance  to the Board which shalt  keep  a  separate account  therefor until claims thereto have been decided  in the  manner  provided in s.6A. Section 6A is a  new  section introduced  retrospectively in the Act and  sub-section  (1) and (2) of that section state that all unpaid  accumulations shall  be  deemed  to be abandoned  property  and  that  any unpaid  accumulations paid to the Board in  accordance  with the  Provisions of s.3 shall, on such payment, discharge  an employer of the liability to make payment to an employee  in respect  thereof, but to the extent only of the amount  paid to the Board and ’that the liability to make payment to  the employee to the extent aforesaid shall, subject to the other provisions  of the section, be, deemed to be transferred  to the  Board.   Sub-section  (3)  provides  that  as  soon  as possible after any unpaid accumulation is paid to the Board, the  Board shall, by a, public notice, call upon  interested employees  to submit to the Board their claims for any  pay- ment due to them.  Sub-section (4) provides that such public notice  shall contain such particulars as may be  prescribed and  that it shall be affixed on the notice board or in  its absence  on  a  conspicuous part of the  premises,  of  each establishment in which the unpaid accumulations were  earned and  shall be published in the Official Gazette and also  in any  two newspapers in the language commonly  understood  in the area in which such establishment is situated, or in such other manner as may be- prescribed, regard being had to  the amount  of the claim.  Sub-section (5)states that after  the notice is first affixed and published under sub-section  (4) it  shall be again affixed and published from time  to  time for  a period of three years from the date on which  it  was first affixed and published, in the manner provided in  that subsection  in  the months of June and December  each  year. Sub-section  (6) states that a certificate of the  Board  to the  effect that the provisions of sub-section (4)  and  (5) were complied with shall be conclusive evidence thereof Sub- section  (7)  provides that any claim  received  whether  in answer  to the notice or otherwise within a period  of  four years  from the date of the first publication of the  notice in respect of such claim, shall be transferred by the  Board

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to  the  authority appointed under s. 15 of the  Payment  of Wages  Act, 1936, having jurisdiction in the area  in  which the factory or establishment is situated, and the  Authority shall  proceed to adjudicate upon and decide such claim  and that  in  bearing such claim the Authority  shall  have  the powers  conferred by and shall follow the procedure  (in  so far  as it is applicable) followed in giving effect  to  the provisions of that Act.  Sub-section (8) 769 states that if in deciding any claim under sub-section  (7), the  Authority  allows the whole or part of such  claim,  it shall  declare that the unpaid accumulation in  relation  to which  the claim is made shall, to the, extent to which  the claim  is allowed ceases to be abandoned property and  shall order  the  Board to pay to the claimant the amount  of  the claim  ,as  allowed by it and the Board shall  make  payment accordingly : provided that the Board shall not be liable to pay any sum in excess of that paid under sub-section (4)  of s.3 to the Board as unpaid accumulations, in respect of  the claim.   Sub-section (9) provides for an appeal against  the decision  rejecting  any claim.  Sub-section  (10)  provides that  the Board shall comply with any order made in  appeal. Sub-section  (11)  makes the decision in  appeal  final  and conclusive as to the right to receive payment, the liability of the Board to pay and also as to the amount, if any :  and sub-section (12) states that if no claim is made within  the time specified in sub-section (7) or a claim or part thereof has been rejected, then the unpaid accumulations in  respect of such claim shall accrue to and vest in the State as  bona vacantia  and shall thereafter without further assurance  be deemed to be transferred to and form part of the Fund. Section  7(1) provides that the, Fund shall vest in  and  be held  and  applied by the Board as Trustees subject  to  the provisions and for the purposes of the Act and the moneys in the  Fund shall be utilized by the Board to defray the  cost of carrying out measures which may be specified by the State Government  from  time  to time to promote  the  welfare  of labour  and  of their dependents.  Sub-section  (2)  of  s.7 specifies  various measures for the benefit of employees  in general  on which the moneys in the Fund may be expended  by the Board. Section 11 provides for the appointment of an officer called the Welfare Commissioner and defines his powers and duties. Section   19   confers  rule-making  power  on   the   State Government. Section 22 empowers the State Government by notification  in the  official gazette to exempt any class  of  establishment from all or any of the provisions of the Act subject to such conditions as may be specified in the notification. During  the  pendency of the writ petition before  the  High Court,  the  Gujarat Legislature passed  the  Bombay  Labour Welfare  Fund (Gujarat Amendment) Act, 1962 on  February  5, 1963  (hereinafter referred to as the Second Amendment  Act) introducing  subsection  (13)  in  s.6A  with  retrospective effect from the date of commencement of the Act.  That  sub- section provides as follows               "(13)  Nothing in the foregoing provisions  of               this    section   shall   apply   to    unpaid               accumulations not already paid to the Board;               (a)  in respect of which no separate  accounts               have been maintained so that the unpaid claims               of employees are not traceable, or               (b) which are proved to have been spent before               the sixth day of December, 1961, 770

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             and  accordingly  such  unpaid   accumulations               shall  not be liable to be collected and  paid               under sub-section (4) of section 3". The  State  Government, in the exercise of  its  rule-making power  under s. 19 amended the Rules by amending rule 3  and adding  a  new  rule 3A setting out the  particulars  to  be contained in the public notice issued under s. 6A(3). The  first respondent raised several contentions before  the High  Court, but the Court rejected all except two  of  them and  they were : (1) that the impugned  provisions  violated the  fundamental  right of citizen-employers  and  employees under article 19(1) (f) and, therefore, the provisions  were void under article 13(2) of the Constitution and hence there was  no law, and so, the notice issued by the  Welfare  Com- missioner  was  without the authority of law; and  (2)  that discrimination   was  writ  large  in  the   definition   of ’establishment’   in  s.  2(4)  and  since  the   definition permeates through every part of the impunged provisions  and is an integral part of the impugned provisions, the impugned provisions were violative of article 14 and were void. So, the two questions in this appeal are, whether the  first respondent  was competent to challenge the validity  of  the impugned  provisions  on the basis that  they  violated  the fundamental  right  under  article  19(1)  (f)  of  citizen- employers  or employees and thus show that the law was  void and non-existent and, therefore, the action taken against it was bad; and whether the definition of ’establishment’ in s. 2(4) violated the fundamental right of the respondent  under article  14 and the impugned provisions were void  for  that reason. Before adverting to these questions, it is necessary to  see what the Act, after it was amended, has purported to do. By s. 6A(1) it was declared that unpaid accumulations  shall be deemed to be abandoned property and that the Board  shall taken them over.  As soon as the Board takes over the unpaid accumulations treating them as abandoned property, notice as provided  in  s.  6A will have to be  published  and  claims invited.   Sub-sections  (3) to (6) of s. 6A provide  for  a public notice calling upon interested employees to submit to the  Board  their  claims for any payment due  to  them  and subsections (7) to (I 1) of s. 6A lay down the machinery for adjudication of claims which might be received in  pursuance to the public notice.  It is only if no claim is made for  a period  of 4 years from the date of the publication  of  the first notice, or, if a claim is made but rejected wholly  or in   part,   that   the  State   appropriates   the   unpaid accumulations  as  bona vacantia.  It is not  as  if  unpaid accumulations  become  bona vacantia on  the  expiration  of three  years.   They are, no doubt, deemed to  be  abandoned property  under s. 6A(1), but they are not  appropriated  as bona vacantia until after claims are invited in pursuance to public notice and disposed of. At common law, abandoned personal property could not be  the subject  of ascheat.  It could only be appropriated  by  the sovereign  as  bona vacantia (see  Holdsworth’s  History  of English Law, 2nd ed., vol. 7, pp. 495-6).  The Sovereign has a prerogative right to appropriate 771 bona  vacantia.  And abandoned property can be  appropriated by the Sovereign as bona vacantia. Unpaid   accumulations  represent  the  obligation  of   the ’employers’ to the ’employees’ and they are the property  of the  employees.   In other words, what is being  treated  as abandoned  property is the obligation to the employees  owed by  the employers and which is property from the  standpoint

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of  the employees.  No doubt, when we look at the scheme  of the  legislation  from a practical point of  view,  what  is being  treated as abandoned property is the money which  the employees  are entitled to get from the employers  and  what the  Board takes over is the obligation of the employers  to pay the amount due to the employees in consideration of  the moneys paid by the employers to the Board.  The State, after taking the money, becomes liable to make the payment to  the employees to the extent of the amount received.  Whether the liability  assumed  by  the State to  the  employees  is  an altogether  new  liability  or  the  old  liability  of  the employers  is  more a matter of academic  interest  than  of practical consequence. When  the moneys representing the unpaid  accumulations  are paid  to the Board, the liability of the employers  to  make payment to the employees in respect of their claims  against the  employers  would  be discharged to the  extent  of  the amount  paid  to  the  Board and  on  such  liability  being transferred to the Board, the debts or claims to that extent cannot thereafter be enforced against the employer. We think that if unpaid accumulations are not claimed within a total period of 7 years, the inactivity on the part of the employees    would   furnish   adequate   basis   for    the administration by State of the unasserted claims or demands. We  cannot  say that the period of 7 years  allowed  to  the employees  for the purpose of claiming unpaid  accumulations is  an  unreasonably  short one which  will  result  in  the infringement of any constitutional rights of the  employees. And,  in  the absence of some persuasive  reason,  which  is lacking here, we see no reason to think that the State  will be,  in fact, less able or less willing to pay- the  amounts when it has taken them over.  We cannot also assume that the mere  substitution of the State as the debtor  will  deprive the  employees  of  their property or  impose  on  them  any unconstitutional  burden.  And, in the absence of a  showing of   injury,   actual  or  threatened,  there  can   be   no constitutional  argument  against  the taking  over  of  the unpaid accumulations by the State.  Since the employers  are the  debtors  of  the  employees,  they  can  interpose   no objection  if the State is lawfully entitled to  demand  the payment, for, in that case, payment of the debt to the State under the statute releases the employers of their  liability to  the  employees.  As regards notice, we are of  the  view that all persons having property located within a state  and subject  to  its  dominion must take note  of  its  statutes affecting  control and disposition of such property and  the procedure prescribed for these, purposes.  The various modes of  notice  prescribed  in  s. 6A  are  sufficient  to  give reasonable information to the employees to come forward  and claim the amount if they really want to do so. Be that as it may, we do not, however, think it necessary to consider  whether the High Court was right in its view  that the impugned pro- 772 visions  violated  the fundamental rights  of  the  citizen- employers  or  employees, for, it is a wise  tradition  with courts  that they will not adjudge on the  constitutionality of a statute except when they are called upon to do so  when legal rights of the litigants are in actual controversy  and as  part of this rule is the principle that one to whom  the application of a statute in constitutional will not be heard to  attack  the statute on the ground that it must  also  be taken  as applying to other persons or other  situations  in which its application might be unconstitutional [see  United States v. Rainas(1)].

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             "A   person  ordinarily  is   precluded   from               challenging    the    constitutionality     of               governmental action by invoking the rights  of               others  and  it  is not  sufficient  that  the               statute   or  administrative   regulation   is               unconstitutional   as  to  other  persons   or               classes  of  persons;  it  must  affirmatively               appear  that the person attacking the  statute               comes within the class of persons affected  by               it."               (see Corpus Juris Secundum, vol. 16, pp.  236-               7). We,  however,  proceed on the assumption that  the  impugned provisions   abridge  the  fundamental  right  of   citizen- employers  and citizen-employees under article 19(1) (f)  in order  to decide the further question and that is,  whether, on  that assumption, the first respondent could  claim  that the  law  was void as against the non-citizen  employers  or employees under article 13 (2) and further contend that  the non-citizen  employers have been deprived of their  property without the authority of law, as, ex hypothesi a void law is a nullity. It  is  settled  by  the decisions  of  this  Court  that  a Corporation is not a citizen for the purposes of article  19 and has, therefore, no fundamental right under that  article (see  Tata Engineering and Locomotive Co.  Ltd. v. State  of Bihar and others(2), R. C. Cooper v. Union of India(3).  The same  view was taken in Bennett Coleman & Co. etc., etc.  v. Union of India and Others(4)]. As  already stated, the High Court found that  the  impugned provisions,  in  so  far as they  abridged  the  fundamental rights of the citizen-employers and employees under  article 19(1)  (f)  were void under article 13(2) and  even  if  the respondent-company  had no fundamental right  under  article 19(1) (f), it had the ordinary right to hold and dispose  of its  property,  and that the right cannot be taken  away  or even   affected  except  under  the  authority  of  a   law. Expressed  in  another way, the reasoning of the  Court  was that  since  the  impugned provisions became  void  as  they abridged  the fundamental right under article 19(1)  (f)  of the  citizen-employers  and employees the law was  void  and non-est, and therefore, the first respondent was entitled to challenge  the  notice issued by  the  Welfare  Commissioner demanding  the  unpaid accumulation as unauthorized  by  any law. The  first respondent, no doubt, has the ordinary  right  of every person in the country to hold and dispose of  property and that right, if (1) 362 U.S. 17.                    (2) [1964] 6 S.C.R. 885, (3) [1970] 3 S.C.R. 530.            (4) [1972] 2 S.C.C. 788. 773 taken  away  or  even affected by the act  of  an  Authority without the authority of law, would be illegal.  That  would give rise to a justiciable issue which can be agitated in  a proceeding under article 226. The  real question, therefore, is, even if a law takes  away or abridges the fundamental right of citizens under  article 19 (1) (f) I whether it would be void and therefore  non-est as respects non-citizens ? In Keshava Madhava Menon v. State of Bombay(1) the  question was  whether a prosecution commenced before the coming  into force  of  the  Constitution could be  continued  after  the Constitution  came into force as the Act in  question  there became  void  as violating article 19 (1) (a) and.  19  (2). Das, J. who delivered the majority judgment was of the  view

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that  the prosecution could be continued on the ground  that the  provisions of the Constitution including article  13(1) were  not retrospective.  The learned judge said that  after the commencement of the Constitution, no existing law  could be  allowed  to  stand  in  the  way  of  the  exercise   of fundamental  rights,  that such inconsistent laws  were  not wiped off or obliterated from the statute book and that  the statute  would operate in respect of all matters  or  events which took place before the Constitution came into force and that  it is also operated after the Constitution  came  into force  and would remain in the statute book as operative  so far as non-citizens are concerned. This  decision  is  clear that even though a  law  which  is inconsistent with fundamental rights under article 19  would become void after the commencement of the Constitution,, the law would still continue in force in so far as  non-citizens are  concerned.  This decision takes the view that the  word ’void’  in  article  1 3 (1) would not have  the  effect  of wiping  out  pre-Constitution laws from the  statute  book-, that  they  will  continue to be operative so  far  as  non- citizens  are concerned, notwithstanding the fact that  they are inconsistent with the fundamental rights of citizens and therefore become void under article 13 (1) In  Behram  Khurshed  Pesikaka v.  State  of  Bombay(2  )the question was about the scope of article 1 3 (1).  This Court had  held that certain provisions of the Bombay  Prohibition Act,  1949  (a  pre-constitution Act), in  so  far  as  they prohibited the possession, use and consumption of. medicinal preparations were void as violating article 19(1) (f).   The appellant  was prosecuted under the said Act and he  pleaded that   he  had  taken  medicine  containing  alcohol.    The controversy was whether the burden of proving that fact  was on him.  It became necessary to consider the legal effect of the  declaration  made by this Court that s. 13 (b)  of  the said  Act  in  so far as it affected  liquid  medicinal  and toilet  preparations  containing alcohol was invalid  as  it infringed  article 19(1) (f).  At the first hearing all  the judges  were agreed that a declaration by a Court that  part of  a  section  was invalid did not  repeal  or  amend  that section.  Venkatarama Aiyar, J. with whom Jagannadhadas,  J. was inclined to agree, held that a distinction must be  made between unconstitutionality arising from lack of legislative competence   and   that   arising  from   a   violation   of constitutional limitations on legislative (1) [1951] S.C.R. 228.       (2) [1955] 1 S.C.R. 613. 774 power.   According  to  him,  if the  law  is  made  without legislative competence, it was a nullity; a law violating  a constitutional  prohibition enacted for the benefit  of  the public  generally was also a nullity; but a law violating  a constitutional prohibition enacted for individuals was not a nullity but was merely unenforceable.  At the second hearing of the case, Mahajan, J. after referring to Madhava  Menon’s Case(1),   said   that  for  determining  the   rights   and obligations  of citizens, the part declared void  should  be notionally taken to be obliterated from the section for  all intents  and  purposes though it may remain written  on  the statute  book and be a good law when a question  arises  for determination  of rights and obligations incurred  prior  to January  26, 1950, and also for the determination of  rights of persons who have not been given fundamental rights by the Constitution.  Das, J. in his dissenting judgment held  that to  hold  that  the invalid part was  obliterated  would  be tantamount to saying covertly that the judicial  declaration had  to  that extent amended the section.  At  p.  659,  the

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learned Judge observed :               "It  is beyond all dispute that it is for  the               Court   to  judge  whether  the   restrictions               imposed  by  any  existing  law  or  any  part               thereof on the fundamental rights of  citizens               are reasonable or unreasonable in the interest               of the general public or for the protection of               the interests of any Schedulea Tribe.  If  the               Court   holds   that  the   restrictions   are               unreasonable then the Act or the part  thereof               which  imposes such unreasonable  restrictions               comes  into conflict and becomes  inconsistent               with  the fundamental right conferred  on  the               citizens  by  article  19(1)  (f)  and  is  by               article  13(1) rendered void, not in  toto  or               for  all purposes or for all persons  but  ’to               the extent of such inconsistency’ i.e., to the               extent it is inconsistent with the exercise of               that fundamental right by the citizens.   This               is plainly the position, as I see it." Mahajan,  C.J. rejected the distinction between a  law  void for lack of legislative power and a law void for violating a constitutional  fetter or limitation on  legislative  power. Both  these  declarations, according to  the  learned  Chief Justice, of unconstitutionality go to the root of the  power itself  and there is no, real distinction between  them  and they represent but two aspects of want of legislative power. In Bhikhaji Narain Dhakras v. State- of M.P.(2) the question was  whether the C.P. and Berar Motor  Vehicles  (Amendment) Act, 1947, amended s. 43 of the Motor Vehicles Act, 1939, by introducing  provisions  which  authorized  the   Provincial Government to take up the entire motor transport business in the Province and run it in competition with and even to  the exclusion  of motor transport operators.  These  provisions, though  valid when enacted, became void on the  coming  into force  of the Constitution, as they violated  article  19(1) (g) On June 18, 1951, the Constitution was amended so as  to authorize the (1) [1951] S.C.R. 228. (2) [1955] 2 S.C.R. 589. 775 State  to  carry  on business  "whether  to  the  exclusion, complete   or  partial,  or  citizens  or   otherwise".    A notification  was issued after the amendment and  the  Court was  concerned with the validity of the  notification.   The real  question before the Court was that although S. 43  was void between January 26, 1950, and June 18, 1951, the amend- ment  of  the article 19(6) had the affect of  removing  the constitutional  invalidity of s. 43 which, from the date  of amendment,  became valid and operative.  After referring  to the  meaning  given  to the word ’void’  in  Keshava  Madhva Menon’s Case(1), Das, Acting C.J. said for the Court :               "All  laws,  existing  or  future,  which  are               inconsistent with the, provisions of Part  III               of  our  Constitution  are,  by  the   express               provision of article 13, rendered void ’to the               extent of such inconsistency’.  Such laws were               not  dead for all purposes.  They existed  for               the  purposes of pre-Constitution  rights  and               liabilities and they remained operative,  even               after   the  Constitution,  as  against   non-               citizens.  It is only as against the  citizens               that  they remained in a dormant  or  moribund               condition" (at pp. 599-600). In M. P. V. Sundararamaier v. State of A.P. (2), Venkatarama

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Aiyar,   J.  said  that  a  law  made  without   legislative competence and a law violative of constitutional limitations on legislative power were both unconstitutional and both had the  same  reckoning in a court of law; and they  were  both unenforceable but it did not follow from this that both laws were of the same quality and character and stood on the same footing for all purposes.  The proposition laid down by  the learned Judge was that if a law is enacted by a  legislature on a topic not within its competence, the law was a  nullity but  if the law was on a topic within its competence but  if it  violated  some constitutional prohibition. the  law  was only unenforceable and not a nullity.  In other words, a law if  it lacks legislative competence was absolutely null  and void and a subsequent cession of the legislative topic would not  revive  the law which was stillborn and the  law  would have  to  be re-enacted; but’ a law within  the  legislative competence  but violative of constitutional  limitation  was unenforceable  but once the limitation was removed, the  law became effective.  The learned judge said that the  observa- tions of Mahajan, J, in Pesikaka’s case(3) that qua citizens that  part of s.13(b) of the Bombay Prohibition  Act,  1949, which  had  been declared invalid by this Court "had  to  be regarded as null and void" could notin  the context be construed as implying that  the impugned law mustbe  regarded  as  non-est so  as  to  be incapable of taking effect when thebar was removed.  He summed up the result of the authorities as follows :               "Where  an  enactment is  unconstitutional  in               part  but  valid as to the rest,  assuming  of                             course that the two portions are sever able,  it               cannot  be held to have been wiped out of  the               statute  book  as it  admittedly  must  remain               there  for the purpose of enforcement  of  the               valid portion thereof, and (1) [1951] S.C.R 228.             (2) [1958] S.C.R. 1422. (3) [1955] 1 S.C.R. 613. 776               being  on the statute book, even that  portion               which  is unenforceable on the ground that  it               is   unconstitutional  will  operate   proprio               vigore when the Constitutional bar is removed,               and there is no need for a fresh legislation." In  Deep Chand v. State of U. P. and Others(t) it  was  held that a post-Constitution law is void from its inception  but that  a  pre-Constitution law having  been  validly  enacted would continue in force so far as non-citizens are concerned after  the Constitution came into force.  The Court  further said  that  there is no distinction in the meaning,  of  the word  ’void’  in  article 13(1) and in  13(2)  and  that  it connoted the same concept but, since from its inception  the post-Constitution   lay   is  void,  the   law   cannot   be resuscitated  without reenactment.  Subba Rao, J. who  wrote the majority judgment said after citing the observations  of Das, Actg.  C.J. in Keshava Madhava Menon’s Case(supra):               "The  second part of the observation  directly               applies  only  to a case  covered  by  article               13(1),  for  the learned Judges say  that  the               laws   exist   for  the   purposes   of   pre-               constitution  rights and liabilities and  they               remain  operative even after the  Constitution               as against non-citizens.  The said observation               could  not obviously apply to  post  Constitu-               tution  laws.  Even so, it is said that  by  a               parity of reasoning the post-Constitution laws

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             are   also  void  to  the,  extent  of   their               repugnancy and therefore the law in respect of               noncitizens will be on the statute-book and by               the  application of the doctrine  of  eclipse,               the same result should flow in its case  also.               There  is some plausibility in this  argument,               but it ignores one vital principle, viz.,  the               existence or the non-existence of  legislative               power  or  competency at the time the  law  is               made governs the situation" (p. 38). Das,  C.J.  dissented.   He was of the  view  that  a  post- Constitution  law  may infringe either a  fundamental  right conferred on citizens only or a fundamental right  conferred on  any person, citizen or noncitizen and that in the  first case  the law will not stand in the way of the  exercise  by the citizens of that fundamental right and  therefore,  will not have any operation on the rights of the citizens, but it will be quite effective as regards non-citizens. In  Mahendra Lal Jaini v. The State of U.P.  and  Others(2), the  Court  was  of the view that the meaning  of  the  word ’void’  is the same both in article 13(1) and article  13(2) and  that the application of the doctrine of eclipse in  the case  of pre-Constitution laws and not in the case of  post- Constitution  laws  does not depend upon the  two  parts  of article  13;  "that it arises from the  inherent  difference between  article  13(1) and article 13(2) arising  from  the fact that one is dealing with pre-Constitution laws, and the other  is  dealing  with post-Constitution  laws,  with  the result  that in one case the laws being not  still-born  the doctrine of eclipse will apply while in the other (1) [1959] Supp.2 S.C.R.8.(2) [1963] Supp. 1 S. C. R. 912. 777 case the law being still-born there will be no scope for the application of the doctrine of eclipse." If  the meaning of the word ’void’ in article 13(1)  is  the same  as  its meaning in article 13(2), it is  difficult  to understand  why a pre-Constitution law which takes  away  or abridges   the  rights  under  article.  19  should   remain operative  even after the Constitution came into.  force  as regards non-citizens and a post-Constitution law which takes away  or abridges them should not be operative  as  respects noncitizens.   The fact that pre-Constitution law was  valid when  enacted  can  afford no reason why  it  should  remain operative  as  respects noncitizens after  the  Constitution came  into  force  as  it became  void  on  account  of  its inconsistency  with the provisions of Part 111.   Therefore, the  real  reason why it remains operative as  against  non- citizens  is  that  it is void only to  the  extent  of  its inconsistency with the rights conferred under Article 19 and that  its voidness is, therefore, confined to citizens,  as, ex  hypothesis  the  law  became  inconsistent  with   their fundamental  rights alone.  If that be so, we see no  reason why a post-Constitution law which takes away or abridges the rights  conferred by article 19 should not be  operative  in regard  to non-citizens as it is void only to the extent  of the  contravention  of  the rights  conferred  on  citizens, namely, those under article 19. Article  13(2) is an injunction to the ’state’ not  to  pass any law which takes away or abridges the fundamental  rights conferred   by   Part  III  and  the  consequence   of   the contravention  of  the injunction is that the law  would  be void to the extent of the contravention.  The expression ’to the extent of the contravention’ in the sub-article can only mean,  to  the  extent of the contravention  of  the  rights conferred  under that part.  Rights do not exist in  vacuum.

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They  must always inhere in some person whether  natural  or juridical   and,  under  Part  It,  they  inhere   even   in fluctuating bodies like a linguistic or religious minorities or  denominations.  And, when the sub-article says that  the law  would be void "to the extent of the contravention",  it can  only  mean to the extent of the  contravention  of  the rights conferred on persons, minorities or denominations, as the case may be.  Just as a pre-Constitution law taking away or abridging the fundamental rights under article 19 remains operative after the Constitution came into force as respects non-citizens   as   it  is  not  inconsistent   with   their fundamental   rights,  so  also  a   post-Constitution   law offending  article  19, remains operative  as  against  non- citizens  as  it  is not in contravention of  any  of  their fundamental  rights.  The same scheme permeates  both,,  the sub-articles, namely, to make the law void in article  13(1) to  the  extent of the inconsistency  with  the  fundamental rights,   and  in  article  13(2)  to  the  extent  of   the contravention of those rights.  In other words, the voidness is  not  in rem but to the extent only of  inconsistency  or contravention,  as the case may be of the  rights  conferred under Part 111.  Therefore, when article 13(2) uses the  ex- pression  ’void’, it can only mean, void as against  persons whose  fundamental  rights are taken away or abridged  by  a law.   The law might be ’still-born’ so far as the  persons, entities or denominations whose fundamental rights are taken away or abridged, but there is no reason 778 why the law should be void or ’still-born’ as against  those who have no fundamental rights. It  is  said  that  the expression "to  the  extent  of  the contravention" in the article means that the part of the law which contravenes the fundamental right would alone be  void and  not  the other parts which do not  so  contravene.   In other  words,  the  argument  was  that  the  expression  is intended  to  denote  only the part of the  law  that  would become  void and not to show that the law will be void  only as regards the persons or entities whose fundamental  rights have been taken away or abridged. The  first part of the sub-article speaks of ’any  law’  and the  second  part refers to the same law by using  the  same expression, namely, ,any law’.  We think that the expression ’any  law’ occurring in the latter part of  the  sub-article must necessarily refer to the same expression in the  former part  and therefore, the Constitution-makers,  have  already made  it clear that the law that would be void is  only  the law  that  contravenes the fundamental rights  conferred  by Part  111,  and  so,  the  phrase  ’to  the  extent  of  the contravention’   can  mean  only  to  the  extent   of   the contravention  of the rights conferred.  For instance, if  a section  in  a  statute takes away or abridges  any  of  the rights  conferred by Part III it will be void because it  is the law embodied in the section which takes away or abridges the fundamental right.  And this is precisely what the  sub- article   has  said  in  express  terms  by  employing   the expression ’any law’ both in the former and the latter  part of  it.   It  is  difficult  to  see  the  reason  why   the Constitution makers wanted to state that the other sections, which  did not violate the fundamental right, would  not  be void,  and  any such categorical statement would  have  been wrong,  as  the  other sections might be void  if  they  are inseparably  knitted to the void one.  When we see that  the latter part of the sub-article is concerned with the  effect of  the voilation of the injunction contained in the  former part,  the  words "to the extent of the  contravention"  can

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only refer to the rights conferred under Part III and denote only  the  compass of voidness with respect  to  persons  or entities  resulting  from the contravention  of  the  rights conferred  upon  them.  Why is it that a law is  void  under article  13 (2) ? It is only because the law takes  away  or abridges  a fundamental right.  There are  many  fundamental rights  and  they  inhere  in  diverse  types  of   persons, minorities  or  denominations.   There  is  no  ,conceivable reason  why a law which takes away the fundamental right  of one class of persons, or minorities or denominations  should be  void  as  against others who have  no  such  fundamental rights  as,  ex hypothesi the law  cannot  contravene  their rights. It   was  submitted  that  this  Court  has   rejected   the distinction    drawn   by   Venkatarama   Aiyar,    J.    in Sundararamaier’s  case(1)  between  legislative   incapacity arising  from lack of power under the  relevant  legislative entry  and that arising from a check upon legislative  power on  account  of constitutional provisions  like  fundamental rights  and that if the law enacted by a legislature  having no capacity in the former sense would be void in rem,  there is  no  reason why a law passed by a legislature  having  no legislative capacity in the latter (1) [1958] S.C.R. 1422. 779 sense is void only cua persons whose fundamental rights  are taken away or abridged. It  was also urged that the expression "the State shall  not make  any  law" in article 13(2) is a clear mandate  of  the fundamental law of the, land and, therefore, it is a case of total incapacity and total want of power.  But the  question is  :  what is the mandate ? The mandate is that  the  State shall  not  make any law which takes away  or  abridges  the rights  conferred by Part 111.  If no rights  are  conferred under  Part III upon a person, or, if rights are  conferred, but they are not taken away or abridged by the law, where is the  incapacity  of the legislature ? It may be  noted  that both  in  Deep Chands Case (supra) and Mahendra  Lal  Jain’s case  (supra), the decision in Sundaramaier’s  case  (supra) was not adverted to.  If on a textual reading of article 13, the conclusion which we have reached is the only, reasonable one,  we need not pause to consider whether that  conclusion could  be arrived at except on the basis of the  distinction drawn   by   Venkatarama  Aiyar,   J,   in   Sundararamaie’s case(supra).   However,  we venture to think that  there  is nothing  strange  in the notion of a legislature  having  no inherent  legislative  capacity  or power to  take  away  or abridge  by  a  law  the  fundamental  rights  conferred  on citizens  and yet having legislative power to pass the  same law  in respect of noncitizens who have no such  fundamental rights  to be taken away or abridged.  In other  words,  the legislative   incapacity  subjectwise  with   reference   to Articles  245 and 246 in this context would be  the  taking. away  or  abridging  by law  the  fundamental  rights  under Article 19 of citizens. Mr. H. W. R. Wade has urged with considerable force that the terms ’void’ and ’voidable’ are inappropriate in the  sphere of  administrative  law(1).  According to him, there  is  no such thing as voidness, in an absolute sense, for, the whole question  is  :  void as against whom?   And  he  cites  the decision  of the Privy Council in Durayappah v.  Fernando(2) in his support. In  Jagannath  v. Authorised Officer, Land  Reforms(3)  this Court  has said that a post-Constitution Act-which has  been struck  down for violating the fundamental rights  conferred

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under  Part III and was, therefore still-born, has still  an existence  without re-enactment, for being put in the  Ninth Schedule.   That only illustrates that any statement that  a law   which  takes  away  or  abridges  fundamental   rights conferred  under  Part III is still-born or  null  and  void requires qualifications in certain situations.  Although the general rule is that a statute declared unconstitutional  is void at all times and that its invalidity must be recognized and  acknowledged  for  all purposes and is  no  law  and  a nullity,  this is neither universally nor  absolutely  true, and  there are many exceptions to it.  A realistic  approach has  been  eroding the doctrine of absolute nullity  in  all cases and for all purposes(4) and it has been held that such broad statements must be (1)  See "Unlawful Administrative Action", 83 Law  Quarterly Rev. 499, at 518. (2) (1967) 3 W.L.R. 289.            (3) [1971] 2 S.C.C. 893. (4)  See Warring v. Colpoys, 122 F. 2d 642. 780 taken   with   some   qualifications(1),   that   even    an unconstitution..... statute is an Operative fact(2) at least prior  to a determination of constitutionality(1),  and  may have  consequences    which cannot ignored(1).   See  Corpus Justice Secundum, Vol. 16, p. 469).               This  is illustrated by the analysis given  by               kelsen(3) :               "The decision made by the competent  authority               that something that presents itself as a  norm               is  null  ab  initio because  it  fulfils  the               conditions of nullity determined by the  legal               order is a constitutive act; it has a definite               legal  effect; without and prior to  this  act               the   phenomenon   in  question   cannot,   be               considered as null.  Hence the decision is not               ’declaratory’,  that is to say, it is not,  as               it presents itself, a declaration of  nullity;               it  is  a true annulment, an  annulment  ,with               retroactive  force.  There must  be  something               legally   existing  to  which  this   decision               refers.   Hence,  the phenomenon  in  question               cannot be something null ab initio, that is to               say, legally nothing.  It has to be considered               as  a norm annulled with retroactive force  by               the  decision  declaring it  null  ab  initio.               Just  as everything King Midas touched  turned               into gold, everything to which the law  refers               becomes    law,   i.e.,   something    legally               existing".  We do not think it necessary to pursue this aspect  further in this case.  For our purpose it is enough to say that if a law  is otherwise good and does not contravene any of  their fundamental rights, noncitizens cannot take advantage of the voidness  of the law for the reason that it contravenes  the fundamental right of citizens and claim that there is no law at all.  Nor would this proposition violate any principle of equality  before the law because citizens  and  non-citizens are  not  similarly situated as the  citizens  have  certain fundamental rights which non-citizens have not.   Therefore, even  assuming that under article 226 of  the  Constitution, the first respondent was entitled to move the High Court and seek,  a  remedy for infringement of its ordinary  right  to property,  the impugned  provisions were  not  non-est  ’but were  valid  laws:  enacted by a  competent  legislature  as respects  non-citizens and the first respondent cannot  take the plea that its rights to property are being taken away or

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abridged without the authority of law. Now, let us see whether the definition,of ’establishment’ in s.  2(4)  violates the right under article 14 and  make  the impugned provisions void. The   High  Court  held  that  there  was  no   intelligible differentia  to distinguish establishments grouped  together under  the  definition  of establishment’  in  S.  2(4)  and establishments left out of the group and that in any  event, the  differentia had no rational relation or nexus with  the object sought to be achieved by the Act and that the im- (1)  See  Chicot Country Drainage District v.  Baxter  State Bank, Ark., 308 U.S. 371. (2)  See warring v. colpoys, 122 F. 2d 642. (3)See "General Theory of Law and State", p. 161. 781 pugned   provisions   as  they  affected  the   rights   and liabilities  of  employers and employees in respect  of  the establishments defined in s. 2(4) were, therefore, violative of article 14.  The reasoning of the High Court was that all factories  falling  within  the meaning of s.  2(m)  of  the Factories Act, 1 948, were brought within the purview of the definition of ’establishment’ while establishments  carrying business or trade and employing less than fifty persons were left out and that out of this latter class of establishments an exception was made and all establishments carrying on the business   of  tramways  or  motor  omnibus  services   were :included   without  any  fair  reason  and   that,   though Government establishments which were factories were included within  the definition of ’establishment’, other  Government establishments    were   excluded   and,   therefore,    the classification was unreasonable. The definition of ’establishment includes factories, tramway or motor omnibus services and any establishment carrying  on business  or trade and employing more than 50  persons,  but excludes all Government establishments carrying on  business or trade. In the High Court, an affidavit was filed by Mr. Brahmbhatt, Deputy Secretary to Education and Labour Department, wherein it was stated that the differentiation between factories and commercial establishments employing less than 50 persons was made  for the reason that the turnover of labour is more  in factories  than  in  commercial  establishments  other  than factories  on  account of the fact that  industrial.  labour frequently  changes employment for a variety of reasons. The High Court was not prepared to accept this  explanation. The High Court said               "It   may   that  in   case,   of   commercial               establishment  employing  not  more  than   50               persons the, turnover of labour in  commercial               establishments being less the unpaid accumula-               tions  may  be  small.   But  whether   unpaid               accumulation   are  small  or  large,  is   an               immaterial  consideration for of enactment  of               the  impugned  provisions.   T  the   impugned               provisions being to get at the unpaid  accumu-               lations and to utilize them for the benefit of               labour, the extent of the unpaid accumulations               with any particular establishment can never be               a relevant consideration." According to the High Court, as an establishment carrying on tramway  or  motor  omnibus  service  would  be  within  the definition of establishment even if it employs less than  50 persons, or for that matter, even less than 10 persons,  the reason  given  in  the  affidavit  of  Mr.  Brahmbhatta  for excluding all commercial establishments employing less  than

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50 persons from the definition was not. tenable.  The Courts was  also  of the view that when Government  factories  were included  in the definition of ’establishment’ there was  no reason  for excluding government establishments  other  than factories  from  the  definition.   The  affidavit  of   Mr. Brahmbhatt  made  it  clear  that  there  were  hardly   any establishments  of  the Central or State  Governments  which carried 782 on  business  or  trade or any work in  connection  with  or ancillary  thereto and, therefore, the legislature  did  not think  it  fit to extend the provisions of the Act  to  such establishments.   No  affidavit in rejoinder  was  filed  on behalf of respondents to contradict this statement. It  would be an idle parade of familiar learning  to  review the   multitudinous  cases  in  which   the   constitutional assurance of equality before the law has been applied. The  equal  protection  of  the laws  is  a  pledge  of  the protection of equal laws.  But laws may classify. 1 And  the very  idea  of1 classification is that  of  inequality.   In tackling this paradox the Court ha,,; neither abandoned  the demand  for  equality nor denied the  legislative  right  to classify.   It has taken a middle course.  It  has  resolved the contradictory demands of legislative specialization  and constitutional  generality  by  a  doctrine  of   reasonable classification.(1) A  reasonable classification is one which includes  all  who are  similarly situated and none who are not.  The  question then is what does the phrase ’similarly situated’ mean ? The answer  to  the  question is that we must  look  beyond  the classification  to  the purpose of the  law.   A  reasonable classification  is  one which includes all persons  who  are similarly  situated with respect to the purpose of the  law. The  purpose  of a law may be either the  elimination  of  a public  mischief or the achievement of some positive  public good. A  classification  is  under-inclusive  when  all  who   are included  in  the class are tainted with  the  mischief  but there  are others also tainted whom the classification  does not  include.   In other words, a classification is  bad  as under,-inclusive when a State benefits or burdens persons in a  manner  that furthers a legitimate purpose but  does  not confer  the same benefit or place the same burden on  others who  are  similarly  situated.  A  classification  is  over- inclusive, when it includes not only those who are similarly situated with respect to the purpose but others who are  not so  situated  as  well.   In  other  words,  this  type   of classification  imposes  a  burden upon  a  wider  range  of individuals than are included in the class of those attended with  mischief  at which the law aims.  Herod  ordering  the death of all male children born on a particular day  because one  of  them  would  sonic day  bring  about  his  downfall employed such a classification. The  first question, therefore, is whether the exclusion  of establishments  carrying on business or trade and  employing less  than  50  persons  makes  the  classification   under- inclusive,  when it is seen that all factories employing  10 or  20 persons, as the case may be, have been  included  and that  the, purpose of the law is to get in unpaid  accumula- tions   for   the  welfare  of  the   labour.    Since   the classification  does  not  include  all  who  are  similarly situated  with  respect  to  the purpose  of  the  law,  the classification  might appear, at first blush, to be  unreas- onable.   But  the  Court  has  recognised  the  very   real difficulties  under which legislatures  operate-difficulties

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arising out of both the nature (1)  See  Joseph Tussman and Jacobus ten Brcek,  "The  Equal Protaction of the Laws", 37 California Rev. 341. 783 of  the  legislative  process  and  of  the  society   which legislation  attempts  perennially to re-shape--and  it  has refused  to  strike down  indiscriminately  all  legislation embodying     classificatory    inequality    here     under consideration.   Mr. Justice Holmes, in urging tolerance  of under-inclusive    classifications,   stated    that    such legislation  should not be disturbed by the Court unless  it can  clearly  see that there is no fair reason for  the  law which  would not require with equal force its  extension  to those  whom  it leaves untouched (1).  What, then,  are  the fair reasons for non-extension ? What should a court do when it   is   faced  with  a  law  making   an   under-inclusive classification in areas relating to economic and tax matters ?  Should  it,  by its judgment, force  the  legislature  to choose between inaction or perfection ? The   legislature   cannot  be  required  to   impose   upon administrative agencies tasks which cannot be carried out or which  must  be  carried out on a large scale  at  a  single stroke.               "if the law presumably hits the evil where  it               is  most  felt.  it is not  to  be  overthrown               because there are other instances to which  it                             might   have   been  applied.   There   is   no               doctrinaire  requirement that the  legislation               should be couched in all embracing terms."               (see West Coast Hotel Company v. Parrish2). The  piecemeal  approach to a general problem  permitted  by under  inclusive classifications, appears justified when  it is considered that legislative dealing with such problems is usually  an experimental matter.  It is impossible  to  tell how   successful   a  particular  approach  may   be,   what dislocations might occur, what evasions might develop.  what new evils might be generated in the attempt.  Administrative expedients   must  be  forged  and   tested.    Legislators, recognizing  these factors, may wish to proceed  cautiously, and courts must allow them to (lo so (supra). Administrative  convenience  in  the  collection  of  unpaid accumulations  is  a  factor to be  taken  into  account  in adjudging  whether  the  classification  is  reasonable.   A legislation may take one step at a time addressing itself to the  phase  of  the problem which seems most  acute  to  the legislative  mind.   Therefore, a legislature  might  select only one phase of one filed for application or a remedy(3). It  may be remembered that article 14 does not require  that every regulatory statute apply to all in the same business : where  size  is  an index to the evil at which  the  law  is directed,  discriminations between the large and  small  are permissible,  and it is also permissible for reform to  take one  step at a time, addressing itself to the phase  of  the problem which seems most acute to the legislative mind. (1) See Missouri, R & T Rly., v. May (1904) 194 US 267, 269. (2) 300 U.S. 379, 400. (3)  See Two Guys from Harrison-Allentown v. McGinley ,  366 U.S. 582, 592. 784 A legislative authority acting within its field is not bound to  extend  its  regulation  to all  cases  which  it  might possibly  reach.   The  legislature  is  free  to  recognize degrees of harm and it may confine the restrictions to those classes  of cases where the need seemed to be clearest  [see

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Mutual Loan, Co. v. Martell(1) ]. In  short,  the problem of legislative classification  is  a perennial  one,  admitting  of  no  doctrinaire  definition. Evils  in the same filed may be of different dimensions  and proportions   requiring  different  remedies.   Or  so   the legislature may think [see Tigner v. Texas(2)]. ,Once  an  objective  is decided to  be  within  legislative competence, however, the working out of classifications  has been  only infrequently impeded by judicial negatives.   The Courts  attitude  cannot  be that the state  either  has  to regulate all businesses, or even all related businesses, and in  the same way, or, not at all.  An effort to strike at  a particular  economic  evil  could not  be  hindered  by  the necessity  of  carrying in its wake a  train  of  vexatious, troublesome  and  expensive regulations covering  the  whole range of connected or similar enterprises. Laws   regulating   economic  activity   would   be   viewed differently  from  laws which touch and concern  freedom  of speech  and  religion,  voting,  procreation,  rights   with respect to criminal procedure, etc.  The prominence given to the  equal  protection clause in many  modern  opinions  and decisions  in  America all show that the  Court  feels  less constrained  to  give  judicial  deference  to   legislative judgment in the field of human and civil rights than in that of economic regulation and that it is making a vigorous  use of  the equal protection clause to strike  down  legislative action  in the area of fundamental human rights(3).   "Equal Protection   clause  rests  upon  two   largely   subjective judgments  :  one  as  to  the  relative  invidiousness   of particular differentiation and the other as to the  relative importance of the subject with respect to which equality  is sought" (4) . The question whether, under article 14, a classification  is reasonable  or unreasonable must, in the  ultimate  analysis depend upon the judicial approach to the problem.  The great divide   in  this  area  lies  in  the  difference   between emphasizing the actualities or the abstractions of  legisla- tion.  The more complicated society becomes, the greater the diversity  of  its problems and the  more  does  legislation direct itself to the diversities.  "Statutes are directed to less  than universal situations.  Law  reflects  distinction that  exist  in  fact or at least appear  to  exist  in  the judgment  of legislators-those, who have the  responsibility for  making  law  fit  fact.   Legislation  is   essentially empiric.   It  addresses itself to the more  or  less  crude outside  world  and not to the neat, logical models  of  the mind.   Classification  is  inherent  in  legislation.    To recognize (1) 56 L. Ed., 175,180 (2) 310 U.S. 141. (3) See "Developments-Equal Protection". 82 Harv.  Law Rev., 1065, at 1127 (4)  See  Cox, "The Supreme Court Foreward", 1966  Term,  80 Harv.  Law Rev. 91-95. 785 marked  differences  that exist in fact is  living  law;  to disregard  practical  differences and  concentrate  on  some abstract identities is lifeless logic"(1). That the legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract  propositions and do not relate to  abstract  units and are not to be measured by abstract symmetry, that  exact wisdom  and  nice adaption of remedies cannot  be  required,

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that  judgment  is largely a prophecy based  on  meagre  and uninterpreted  experience, should stand as reminder that  in this  area  the  Court does not lake  the  equal  protection requirement in a pedagogic manner(supra). In  the utilities, tax and economic regulation cases,  there are good reasons for judicial self-restraint if not judicial deference  to legislative judgment.  The  legislature  after all  has  the affirmative responsibility.  The  Courts  have only  the power to destroy, not to reconstruct.  When  these are  added  to the complexity of  economic  regulation,  the uncertainty,   the  liability  to  error,  the   bewildering conflict of the experts, and the number of times the  judges have  been overruled by events--self-limitation can be  seen to be the path to judicial wisdom and institutional prestige and stability(supra). We must be fastidiously careful to observe the admonition of Mr.  Justice  Brandeis, Mr. Justice Stone  and  Mr.  Justice Cardozo  that  we do not "sit as a  super-legislature"  (see their dissenting opinion in Colgate v. Harvey(2). Let  us look at the problem here in the light of  the  above discussion.   The  purpose  of  the Act  is  to  get  unpaid accumulations  for utilizing them for the welfare of  labour in  general.  The aim of any legislature would then  be,  to get the unpaid accumulation from all concerns.  So an  ideal classification  should  include  all  concerns  which   have ’unpaid  accumulations’.   But  then  there  are   practical problems.    Administrative  convenience  as  well  as   the apprehension  whether the experiment., if undertaken  as  an all-embracing   one  will  be  successful,  are   legitimate considerations in confining the realization of the objective in  the first instance to large concerns such  as  factories employing  large amount of labour and’, with statutory  duty to  keep  register  of  wages,  paid  and  unpaid,  and  the legislature  has, in fact,, brought all  factories,  whether owned by Government of otherwise, within the purview of  the definition  of ’establishment’.  In other words, it is  from the   factories   that  the  greatest   amount   of   unpaid accumulations  could be collected and since,  the  factories are  bound  to maintain records from which.  the  amount  of unpaid  accumulations  could  be  easily  ascertained,   the legislature brought all the factories within the  definition of  ’establishment’.   It  then addressed  itself  to  other establishments  but thought that  establishments  employing, less than 50 persons need not be brought within the (1) See the observations of Justice- Frankfurter in Morey v. Doud, 354 U.S. 457, 472. (2) 296 U.S. 404, 441. 786 purview  of the definition as unpaid accumulations in  those establishments would be less and might not be sufficient  to meet  the administrative expenses of collection and as  many of  them  might not be maintaining records  from  which  the amount  of unpaid accumulations could be  ascertained.   The affidavit  of  Mr.  Brahmbhatt made  it  clear  that  unpaid accumulations in these establishments would be comparatively small.  The reason why government establishments other  than factories were not included in the definition is also stated in the affidavit of Mr. Brahmbhatt, namely, that there  were hardly  any  establishments  run by  the  Central  or  State Government.   This  statement was not  contradicted  by  any affidavit in rejoinder. There  remains then the further question whether  there  was any justification for including tramways and motor omnibuses within  the purview of the definition.  So far  as  tramways

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and  motor  omnibuses  are  concerned,  the  legislature  of Bombay,  when  it  enacted the Act in 1953,  must  have  had reason to think that unpaid accumulations in these  concerns would  be  large as they usually employed  large  amount  of labour force and that they were bound to keep records of the wages earned and paid.  Section 2(ii) (a) of the Payment  of Wages Act, 1936, before that section was amended in 1965  so far as it is material provided :               "2.  In  this Act, unless  there  is  anything               repugnant in the subject or context,-               (ii)  "industrial establishment" means any--               (a) tramway or motor omnibus service".               Rule  5 of the Bombay Payment of Wages  Rules,               1937 provided               "5.  Register of Wages : A Register  of  Wages               shall  be  maintained  in  every  factory  and               industrial  establishment and may be  kept  in               such  form as the paymaster  finds  convenient               but shall include the following particulars :               (a)  the  gross wages earned  by  each  person               employed for each wage period;               (b) all deductions made from those wages, with               an  indication in each case of the  clause  of               sub-section  (2) of section 7 under which  the               deduction is made:               (c)  the  wages actually paid to  each  person               employed for each wage period." The  Court must be aware of its own remoteness and  lack  of familiarity   with   local  problems.    Classification   is dependent on the peculiar needs and specific difficulties of the community.  The needs and difficulties of the  community are  constituted out of facts and ’opinions beyond the  easy ken of the court (supra).  It depends to a great extent upon an assessment of the local condition of these concerns which the legislature alone was competent to make. Judicial  deference to legislature in instances of  economic regulation  is  sometimes  explained by  the  argument  that rationality  of  a  classification may  depend  upon  ’local conditions’ about which local 787 legislative or administrative body would be better  informed than a court.  Consequently, lacking the capacity to  inform it-,elf fully about the peculiarities of a particular  local situation,  a court should hesitate to dub  the  legislative classification irrational (see, Carmichnel v. Southern  Coal and Coke Co.(1). Tax laws, for example, may respond  closely to  local needs and court’s familiarity with these needs  is likely to be limited. Mr.  S.  T. Desai for the appellants argued that, if  it  is held  that the inclusion of tramways and motor omnibuses  in the  category  of ’establishment’ is  bad,  the  legislative intention to include factories and establishments  employing more than 50 persons should not be thwarted by striking down the  whole  definition.   He  said  that.  the  doctrine  of severability can be applied and that establishments  running tramways  and  motor  omnibuses can  be  excluded  from  the definition without in the least sacrificing the  legislative intention. In  Skinner  v.  Iklahoma ex rel Williamson  (2)  a  statute providing  for sterilization of habitual criminals  excluded embezzlers  and certain other criminals from  its  coverage. The  Supreme Court found that the  statutory  classification denied  equal protection and remanded the case to the  State Court  to  determine whether  the  sterilization  provisions should be either invalidated or made to cover all  habitual,

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criminals.   Without elaboration, the State Court  held  the entire  statute  unconstitutional,  declining  to  use   the severability clause to remove the exception that created the discrimination.   In Skinner’s case the exception  may  have suggested  a  particular legislative intent that  one  class should not be covered even if the result was that none would be.   But  there  is no necessary reason  for  choosing  the intent  to  exclude  one group over the  intent  to  include another.   Courts may reason that without  legislation  none would  be  covered,  and  that  invalidating  the  exemption therefore amounts to illegitimate judicial legislation  over the remaining class not previously covered.  The conclusion, then,  is  to invalidate the whole statute,  no  matter  how narrow  the  exemption had been.  The reluctance  to  extend legislation may be particularly great if a statute  defining a  crime  is  before a court,  since  extension  would  make behaviour  criminal  that had not been so before.   But  the consequences  of  invalidation will be unacceptable  if  the legislation  is necessary to all important  public  purpose. For  example, a statute requiring licensing of  all  doctors except  those from a certain school could be found  to  deny equal  protection, but a court should be hesitant to  choose invalidation of licensing as an appropriate remedy.   Though the  test  is  imprecise-, a court must  weigh  the  general interest  in retaining the statute against the  court’s  own reluctance  to  extend legislation to  those  no  previously covered.  Such an inquiry may lead a court into  examination of  legislative  purpose,  the  overall  statutory   scheme, statutory arrangements in connected fields and the needs  of the public(,’). (1) 301 U.S. 495. (2) 316 U.S. 535. (3) See "Developments-Equal Protection", 82 Harv.  Law Rev., 1065, ,it pp. 1136-7. 788 This Court has, without articulating any reason, applied the doctrine  of severability by deleting the  offending  clause which  made classification unreasonable [see  Jalan  Trading Co. v. Mazdoor Union(1) and Anandji & Co. v. S.T.O.(2)]. Whether  a,  court  can remove  the  unreasonableness  of  a classification  when it is under-inclusive by extending  the ambit  of the legislation to cover the class omitted  to  be included,  or,  by  applying the  doctrine  of  severability delete a clause which makes a classification over-inclusive, are  matters  on which it is not necessary  to  express  any final opinion as we have held that the inclusion of  tramway and   motor   omnibus   service   in   the   definition   of ’establishment’ did not make the classification unreasonable having regard to the purpose of the legislation. In the result, we hold that the impugned sections are  valid and allow the appeals with costs.  Hearing fee one set. V.P.S.                     Appeals allowed. (1) [1967] 1 S.C.R. 15. (2)  [1968] 1 S.C.R.661. 789