Supreme Court of India
N.K. BAJPAIversusUNION OF INDIA AND ANR.
- Citation
- 2012 INSC 134
- Decided
- 15 March 2012
- Disposal
- Dismissed
- Bench
- A K PATNAIK
Holding
Section 129(6) of the Customs Act, 1962 imposes a reasonable restriction and is constitutionally valid; the appeals are dismissed.
Summary
The petitioners, former members of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), challenged Section 129(6) of the Customs Act, 1962, which bars a person who has ceased to be a President, Vice‑President or Member of the Tribunal from appearing before it. They argued that the provision was ultra‑vires the Constitution, violated Articles 19(1)(g), 14 and 21, and could not be applied retrospectively to them. The Supreme Court held that the restriction is a reasonable limitation permissible under Article 19(2), serves a larger public interest of preserving the integrity of the Tribunal, and is not an absolute ban as advocates may still practice before other courts and tribunals. The Court also clarified that the provision, though having retroactive effect, is not impermissibly retrospective and must be read harmoniously with Section 146A. Consequently, the appeals were dismissed.
Issues considered
- Whether Section 129(6) of the Customs Act, 1962, which prohibits former members of CESTAT from appearing before the Tribunal, is unconstitutional under Articles 19(1)(g), 14 and 21 of the Constitution.
- Whether the restriction under Section 129(6) can be applied to the petitioners who were appointed and demitted before the amendment, i.e., whether the provision is prospective or retrospectively applicable.
Legislation cited
- Advocates Act, 1961s. 29, s. 30, s. 33
- Customs Act, 1962s. 129(6), s. 146, s. 146A
Subjects
Customs ActSection 129(6)right to practiceArticle 19(1)(g)reasonable restrictionjudicial biasretroactive legislationtribunalconstitutional validitypublic interest
Judgment
[2012] 2 S.C.R. 433
N.K. BAJPAI A
v.
UNION OF INDIA AND ANR.
(Civil Appeal No. 2850 of 2012)
MARCH 15, 2012
B
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.)
Customs Act, 1962 - s. 129 (6) - Restrictions under -
Constitutional validity of - Held: The restrictions imposed u/
s. 129(6) is not unreasonable or ultra vires the Constitution- C
Every right is subject to reasonable restriction - Right to
practice, being a statutory right as well as fundamental right
under Article 19(1)(g) of the Constitution, can be subjected to
restriction relating to the professional and technical
qualifications necessary for carrying out that profession -The o
restriction u/s. 129(6) is limited and not absolute and is
intended to serve a larger public interest - Limited restrictions
are neither violative of the Fundamental Rights nor do they
tantamount to denying equality under Article 14 - The
restriction would be held valid except where the challenge is E
on the ground to legislative incompetence or when the
restrictions imposed are exfacie unreasonable, arbitrary and
violative of Fundamental Rights - The element of likelihood
of legal bias which was sought to be prevented by the
restrictions, was neither presumptuous nor without any basis F
or object - Constitution of India, 1950 - Articles 14 and
19(1)(g).
Judicial bias - ·The element of bias itself may not always
necessarily vitiate an action - It depends on the facts of each
case. G
Retroactive Operation:
Restrictions imposed on advocates to appear before a
433 H
434 SUPREME COURT REPORTS [2012) 2 S.C.R.
A limited forum - Held: The enforcement of restriction
retroactively would not be impermissible - It is not for the
courts to interfere with implementation of a restriction which
is otherwise permissible in law.
· Law enforced retrospectively and law (n operation
8
retroactively - Distinction between - Retrospective Operation.
Words and Phrases:
'Reasonable' - Meaning of, in the context of Constitution
c of India.
'Bias' - Meaning and inference of - Discussed.
The common questions for consideration in the
instant appeals were (i) whether Section 129(6) of the
D Customs Act, 1962 (as introduced by Finance Act, 2003)
stipulating that on demitting office as Member of the
Customs Excise and Service Tax Appellate Tribunal
(CESTAT) a person shall not be entitled to appear before ·
the CESTAT, is ultra vires the Constitution of India and
E (ii) whether s. 129(6) was applicable to the appellants.
It was interalia contended on behalf of the appellants
that the entire restriction was based on an illogical
presumption of likelihood of bias and therefore the
F amendment is liable be declared ultra vires; that the
provisions of s. 129(6) of the Customs Act cannot be
given effect to retrospectively; and that the appellants
could continue to appear before the Tribunal as they
were permitted to do so in terms of s. 146A of the
Customs Act, 1962, despite the provisions of s. 129(6) of
G the Act.
Dismissing the appeals, the Court
HELD: 1.1 Part Ill of the Constitution is the soul of the
H Constitution of India. It is not only a charter of the rights-
N.K. BAJPAI v. UNION OF INDIA AND ANR. 435
that are avartable to Indian citizens, but is even completely A
in consonance with the basic norms of human rights,
recognized and accepted all over the world. The
fundamental rights are basic rights, but they are neither
uncontrolled nor without restrictions. Exceptions apart,
normally the restriction or power to regulate the manner B
of exercise of a right would not frustrate the right. It is
difficult to anticipate the right to any freedom or liberty
without any reasonable restriction. Besides this, the State
has to function openly and in public interest. The width
of the expression 'public interest' cannot be restricted to c
a particular concept. It may relate to variety of matters
including administration of justice. [Para 7] [449-G-H; 450-
A-F]
1.2 No person can be divested of his fundamental
rights. They are incapable of being taken away or D
abridged. All that the State can do, by exercise of its
legislative power, is to regulate these rights by imposition
of reasonable restrictions on them. The restriction can be
imposed only by or under the authority of law. It cannot
be imposed by exercise of executive power without any E
law to back it up. Each restriction must be reasonable. A
restriction must be related to the purpose mentioned in
Article 19(2). [Para 11] [451-F-H; 452-A]
1.3 The legislative determination of what restriction F
to impose on a freedom is final and conclusive, as it is
not open to judicial review. It is difficult to define or
explain the word "reasonable" with any precision. It will
always be dependent on the facts of a given case with
reference to the law which has been enacted to create a G
restriction on the right. It is neither possible nor advisable
to state any· abstract standard or general pattern of
reasonableness as applicable uniformly to all cases.
[Para 12] [452-B-D]
1.4 In spite o( there being a general presumption in H
436 SUPREME COURT REPORTS [2012] 2 S.C.R.
A favour of the constitutionality of a legislation under
challenge in case of allegations of violation of the right
to freedom guaranteed by clause (1) of Article 19 of the
Constitution, on a prima facie case of such violation being
made out, the onus shifts upon the State to show that the
B legislation comes within the permissible restrictions set
out in clauses (2) to (6) of Article 19 and that the particular
restriction is reasonable. It is for the State to place
appropriate material justifying the restriction and its
reasonability on record. [Para 14] [453-D-E]
c 1.5 The right to practice, which is not only a statutory
right under the provisions of the Advocates Act but would
also be a fundamental right under Article 19(1)(g) of the
Constitution is subject to reasonable restrictions. The
legislature is entitled to make a law relating to the
D professional or technical qualifications necessary. for
carrying on that profession. [Para 16] [454-H; 455-B]
1.6 The restriction imposed u/s.129(6) of the Act is
not unreasonable or ultra vires. Firstly, it is not an
E absolute restriction. It is a partial restriction to the extent
that the persons who have held the office of the
President, Vice-President or other Members of the
Tribunal cannot appear, act or plead before that Tribunal.
The right of such advocate to practice in the High Courts,
F District Courts and other Tribunals established by the
State or the Central Government other than the CESTAT
remains unaffected. Thus, the field of practice is wide
open, in which there is no prohibition upon the practice
by a person covered under the provisions of Section
G 129(6) of the Customs Act. Secondly, such a restriction
is intended to serve a larger public interest and to uplift
the professional values and standards of advocacy in the
country. It would add further to public confidence in the
administration of justice by the Tribunal, in discharge of
H its functions. Thus, it cannot be held that the restriction
has been introduced without any purpose or object.
N.K. BAJ PAI v. UNION OF INDIA AND ANR. 437
There is a clear nexus between the mischief sought to be A
avoided and the object aimed to be achieved. [Para 20]
[456-F-H; 457-A-C]
1.7 Limited restrictions are neither violative of the
fundamental rights, nor do they tantamount to denying
8
the equality before law in terms of Article 14 of the
Constitution. [Para 24) [463-B-C]
1.8 Except where the challenge is on the grounds of
legislative incompetence or the restriction imposed was
ex facie unreasonable, arbitrary and violative of Part Ill of C
the Constitution of India, the restriction would be held to
be valid and enforceable. [Para 29) [466-C]
Municipal Corporation of the City of Ahmedabad and Ors.
v. Jan Mohammed Usmanbhai and Anr. (1986) 3 SCC 20: D
1986 ( 2 ) SCR 700 ; Devata Prasad Singh Chaudhuri and
Ors. v. The Hon'ble the Chief Justice and Judges of the Patna
High Court AIR 1962 SC 201: 1962 SCR 305 - followed.
Sukumar Mukherjee v. State of West Bengal (1993) 3
SCC 723: 1993 (1) Suppl. SCR 339; S. Rangarajan v. P. E
Jagjivan Ram and Ors. (1989) 2 SCC 574: 1989 ( 2 ) SCR
204 ; Paradip Port Trust, Paradip v. Their Workmen AIR 1977
SC 36: 1977 (1) SCR 537; Lingappa Pochamma Appelwar
v. State of Maharashtra and Anr. (1985) 1 SCC 479: 1985
(2) SCR 224 - relied on. F
H. S. Srinivasa Raghavachar and Ors. v. State of
Karnataka (1987) 2 SCC 692: 1987 (2) SCR 1189 -
distinguished.
Indian Council of Legal Aid and Advice v. Bar Council G
of India and Anr. (1995) 1 SCC 732: 1995 (1) SCR 304 -
referred to.
2.1 It is not correct to say that the presumption of
legal bias being without any basis and ill-founded, the H
438 SUPREME COURT REPORTS [2012] 2 S.C.R.
A amendment itself is liable to be declared ultra vires. It is
not only the mischief of likelihood of bias which is sought
to be prevented by the amendment but the amendment,
has a definite purpose and object to achieve which is i11
the larger public interest. Such legis:ative attempt, not
B only to adhere to but to enhance the values and dignity
of the legal profession, would add to the confidence of
the common litigant in the administration of justice and
the performance of duties by .the Tribunal. [Para 30] [466-
D-F]
c 2.2 imposition of restrictions is a concept inbuilt into
the enjoyment of fundamental· rights, as no right can exist
without a corresponding reasonable restriction placed 011
it. When the restrictions are placed upon the carrying on
of a profession or to ensure that the intent, object or
D purpose achieved thereby would be enhancing the purity
of public life, such object would certainly be throttled if
there arose a situation of conflict between private interest
and public duty. The principle of private interest giving
way to public interest is a settled cannon, not only of
E administrative jurisprudence, but of statutory
interpretation as well. Having regard to the prevalent
values and conditions of the profession, most of the legal
practitioners would not stoop to unhealthy practices or
tactics but the Legislature, in its wisdom, has considered
F it desirable to eliminate any possibility of conflict between
the interest and duty and aimed at achieving this object
or purpose by prescribing the requisite restrictions. With
the development of law, the courts are expected to
consider, in contradistinction to private and public
G interest, the institutional interest and expectations of the
public at large from an institution. These are the
balancing tests which are applied by the courts even in
the process of interpretation or examining of the
constitutional validity of a provision. [Para 33] [467-D-H;
H 468-A]
N.K. BAJPAI v. UNION OF INDIA AND ANR. 439
2.3 Bias must be shown to bepresent. Probability of A
bias, possibility of bias and r~asonable suspicion that
bias might have affected the decision are terms of
different connotations. They broadly fall under two
categories, i.e., suspicion of bias and like'ihood of bias.
Likelihood of bias would be the possibility of bias and B
bias which can be shown to be present, while suspicion
of bias would be the probability or reasonable suspicion
of bias. The former lead to vitiation of action, while the
latter could hardly be the foundation for further
examination of action,· with reference to the facts and c
circumstances of a given case. The correct test would be
to examine whether there appears to be a real danger of
bias or whether there is only a probability or even a
preponderance of probability of such bias, in the
circumstance!' of a given case. If it falls in the prior 0
category, the decision would attract judicial chastise but
if it falls in the latter, it would hardly effect the decision,
much less adversely. [Para 35] [468-G-H; 469-A-B]
2.4 The element of bias by itself may not always
necessarily vitiate an action. The Court would have to E
examine the facts of a given case. In the instant case,
despite their absence from the object and reasons for the
amendment of Section 129(6) of the Customs Act, it
cannot be held that the element of bias was
presumptuous or without any basis or object. It may be F
one of the relevant factors which probably would have
weighed on the mind of the Legislature. When someone
has been a member of a Tribunal over a long period, and
other members have been his co-members whether
judicial or technical, it is difficult to hold that there would G
be no possibility of bias or no real danger of bias. Even
if this possibility is ruled out still, it will always be better
advised and in the institutional interest that restrictions
· are enforced. Then alone will the mind of the litigant be
free from a lurking doubt of likelihood of bias and this H
440 SUPREME COURT REPORTS [2012] 2 S.C.R.
A would enhance the image of the Tribunal. The restriction,
leaves the entire field of legal profession wide open for
the appellants and all persons situated alike except to
practice before CESTAT. [Para 37) [469-H; 470-A-D]
B 2.5 Besides the possibility of bias, there is a
legitimate expectation on the part of a litigant before the
Tribunal that there shall not be any possibility of justice
being denied or being not done fairly. [Para 38) [470-E]
2.6 The contention ofthe petitioners that there has
C to be empirical data to suggest that their practice before
the Tribunal resulted in instances of misdemeanor which
would have propelled the respondents to insert such a
provision in the enactment, has rightly been rejected by
the High Court. It may not even be proper to introduce
D such amendments with reference to any data. Suffice it
to note that these amendments are primarily based upon
public perception and normal behaviour of an ordinary
human being. It is difficult to define cases where element
of bias would affect the decision and where it would not,
E by a precise line of distinction. Even in a group, a person
possessing a special knowledge may be in a position to
influence the group and his bias may operate in a subtle
manner. [Para 38) [470-F-H; 471-A]
F 2.7 The general principles of bias are equally
applicable to administrative and civil jurisprudence.
Members of the Tribunals, called upon to try issues in
judicial or quasi-judicial proceedings should act judicially.
Reasonable apprehension is equitable to possible
apprehension and, therefore, the test is whether the
G litigant reasonably apprehends that bias is attributable to
a member of the Tribunal. [Para 39) [471-B-C]
2.8 The word 'bias' in popular English parlance
stands included within the attributes and broader
H
N.K. BAJPAI v. UNION OF INDIA AND ANR. 441
purview of the word 'malice', which in general A
connotation, means and implies 'spite' or 'ill will'. The
element of 'bias' is to be inferred as per the standard and
comprehension of a reasonable man. Th'l bias may also
be malicious act having some element of int.ention
without just cause or excuse. In case of malice or ill will, 8
it may be an actual act conveying negativity but the
element of bias could be apparent or reasonably seen
without any negative result and could form part of a
general public perception. [Para 41] [472-E-F]
Dr. Haniraj L. Chu/ani v. Bar Council, State of C
Maharashtraand Goa 1996 (3) SCC 342: 1996 (1) Suppl.
SCR 51 - relied on.
Manak Lal v. Dr. Prem Chand AIR 1957 SC 425: 1957
SCR 575; Rasmiranjan Das v. Sarojkanta Behera and Ors. o
(2000) 10SCC 502; Kumaon Manda/ Vikas Nigam Ltd. v.
Girja Shankar Pant and Ors. (2001) 1 SCC 182: 2000 (4)
Suppl. SCR 248; S. Parthasarathi v. State of Andhra Pradesh
(1974) 3 SCC 459: 1974 (1) SCR 697; State of Punjab v. V.K.
Khanna (2001) 2 SCC 330 : (2000) 5 Suppl. SCR 200 - E
referred to.
R. v. Sussex Justices Ex. P. McCarthy (1924) 1 KB 256
KBD 259; Porter v. Magill (2002) 2 AC 357 - referred to.
'Bias, Ma/function in Judicial Decision-making' by Sir F
Louis Blom, Q.C., (2009) Public Law 199; De Smith's Judicial
Review (Sixth Edition) by Harry Woolf, Jeffey Jowell and
Andrew Le Sueur - referred to.
3.1 When the appellants were enrolled as advocates G
as well as when they started practicing as advocates,
their right was subject to the limitations under any
applicable Act or under the constitutional limitations, as
the case may be. One must clearly understand a
distinction between a law being enforced retrospectively
H
442 SUPREME COURT REPORTS [2012] 2 S.C.R.
A and a law that operates retroactively. The restriction in the
present case is a clear example where the right to
practice before a limited forum is being taken away in
presenti while leaving all other forums open for practice
by the appellants. Though such a restriction may have
8 the effect of relating back to a date prior to the presenti.
In that sense, the law stricto sensu is not retrospective,
but would be retroactive. It is not for the court to interfere
with the implementation of a restriction, which is
otherwise valid in law, only on the ground that it has the
C effect of restricting the rights of the people who attain
that status prior to the introduction of the restriction. It is
certainly n~t a case of settled or vested rights, which are
incapable '6f being interfered with. It is a settled canon of
law that the rights are subject to restrictions and the
restrictions, if reasonable, are subject to judicial review
D of a very limited scope. In the facts and circumstances
of the present case it is not correct to say that
enforcement of the restriction retroactively would be
impermissible. [Paras 43 & 44] [473-C-H; 474-A]
E 3.2 The law is not at all retrospective even though the
retirement or date of ceasing to be a member of the
Tribunal may have been on a date anterior to the date of
passing of the law. The restriction is not punitive, in that
sense, but is merely a criterion for eligibility for continuing
F to practice law before the Tribunal. [Paras 46 & .47] [474-
E-F]
3.3 Earlier, the nature of law, as substantive or
procedural, was taken as one of the determinative facto.rs
for judging the retrospective operation of a statute.
G However, with the development of law, this distinction
has become finer and of less significance. The rule
against retrospectivity has also been stated, in recent
years, to avoid the classification of statutes into
substantive and procedural and the usage of words like
H 'existing' or 'vested'. [Para 48] [474-G-H; 475-B-C]
N.K. BAJ PAI v. UNION OF INDIA AND ANR. 443
3.4 In such matters, in judiciously examining the A
question of retrospectivity or otherwise, the relevant
considerations include the circumstances in which
legislation was created and the test of fairness. The
principles of statutory interpretation have expanded. With
the development of law, it is desirable that the courts B
should apply the latest tools of interpretation to arrive at
a more meaningful and definite conclusion. [Para 49)
[475-F-G]
3.5 In the instant case, the restriction would be
applied uniformly to all the practicing advocates as well C
as to the advocates who would join the profession in
future and would achieve the object of the Customs Act
without leading to any absurd results. On the contrary,
its uniform application would achieve fair results without
really visiting any serious prejudice upon the class of the D
advocates who were earlier the members of the Tribunal
as it remains open to them to practice in other tribunals,
forums and courts. If an exception was carved out in their
favour, it would lead to an anomaly as well as an absurd
situation frustrating the very purpose and object of E
Section 129(6) of the Act. [Para 50) [476-C-E]
Vijay v. State of Maharashtra and Ors. (2006) 6 SCC 289:
2006 (4) Suppl. SCR 81; Dilip v. Mohd: Azizul Haq and Anr.
(2000) 3 sec 607: 2000 (2) SCR 280 - relied on.
F
R. v. Inhabitants of St. Mary, Whitechapel (1881) 12 QB
149; Maxwell v. Murphy (1957) 96 CLR 261 - referred to.
Principles of Statutory Interpretation (12th Edition, 2010)
by Justice G.P. Singh - referred to.
G
4. The provisions of Section 129(6) of the Customs
Act and its operation cannot be faulted with. It is not
correct to say that the appellants can continue to appear
before the Tribunal as they are permitted to do so in
terms of .Section 146A of the Customs Act, despite the H
444 SUPREME COURT REPORTS [2012] 2 S.C.R.
A provisions of Section 129(6) of the Customs Act. The
provisions of Section 129(6) of the Customs Act are
specific and both these provisions have to be construed
harmoniously. There is nothing contradictory in these
provisions. Section 146(2)(c) of the Customs Act refers
B to the appearance by a legal practitioner who is entitled
to practice as such in accordance with law. Section 129(6)
places a restriction which is reasonable and valid
· restriction. Thus, the provisions of Section 146A of the
Act would have to be read in conjunction with and
c harmoniously to Section 129(6) of the Customs Act and
the person who earns a disqualification under this
provision cannot derive any extra benefit contrary to
Section 129(6) of the Customs Act from the reading of
Section 146A of the Customs Act. [Para 52) [477-B-E]
D Case Law Reference:
1989 (2) SCR 204 Relied on Para 8
1993 (1) Suppl. SCR 339 Relied on Para 21
E 1986 (2) SCR 700 Followed Para 22
1962 SCR 305 Followed Para 23
1987 (2) SCR 1189 Distinguished Para 24
1977 (1) SCR 537 Relied on Para 25
F
1985 (2) SCR 224 Relied on Para 27
1995 (1) SCR 304 Referred to Para 28
1996 (1) Suppl. SCR 51 Relied on Para 31
G
(1924) 1 KB 256 KBD 259Referred to Para 34
(2002) 2 AC 357 Referred
. \
to Para 34
1957 SCR 575 Referr~d \oI Para 39
H
N.K. BAJPAI v. UNION OF INDIA AND ANR. 445
(2000)1 o sec 502 Referred to Para 39 A
2000 (4) Suppl. SCR 248 Referred to Para 40
1974 (1) SCR 697 Referred to Para 40
(2001) 2 sec 330 Referred to Para 40
B
(1881) 12 QB 149 Referred to Para 45
(1957) 96 CLR 261 Referred to Para 48
2006 (4) Suppl. SCR 81 Relied on Para 49
2000 (2) SCR 280 Relied on Para 51
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2850 of 2012.
From the Judgment & Order dated 13.04.2009 of the High D
Court of Delhi in WP (C) No. 6712 of 2007.
WITH
Civil Appeal Nos. 2851 and 2852 of 2012.
Hari Shankar, Sudarshan Singh Rawat, Jay Kumar for the E
Appellant.
B. Bhattacharya, ASG Sunil Roy, Judy James, Ajay Singh,
A.K. Sharma, B. Krishna Prasad for the Respondents.
' .
''
Th~ Judgment d,f the Court was delivered by F
I I
I I
SWATANTER KUMAR, J. 1. Leave granted.
2. This judgment shall dispose of all the above three
appeals, as common questions of law arise therefrom, on G
somewhat similar facts for consideration of this Court. In these
appeals, the following questions have been raised :
"(i) Whether Section 129(6) of the Customs Act, 1962,
which stipulates that on demitting office as Member of the
Customs Excise and Service Tax Appellate Tribunal H
446 SUPREME COURT REPORTS [2012] 2 S.C.R.
A (hereinafter referred to as the "CESTAT") a person shall
not be entitled to appear before the CESTAT, is ultra vires
the Constitution of India?
(ii) Whether the said provision applies to the petitioner, as
it was introduced after the petitioner had not only joined
B as Member of the CESTAT but also demitted office as
such·Member?"
3. We may notice the basic factual premise from which the
above legal questions have arisen for consideration of this
c Court. Primarily, we would be referring to the facts of SLP (C)
No.8482 of 2010 titled P.C. Jain v. Union of India & Ors.
4. The appellant joined the Indian Customs and Central
Excise Service, Class - I (later called Group 'A'), in the year
1956, where he served for a number of years, in different
D capacities. On 1st November, 1990, the appellant was selected
as a Member (Technical) in the Customs, Excise and Gold
(Control) Appellate Tribunal (CEGAT). The appellant demitted
his office as Member (Technical) of CEGAT on 7th March, 1993.
As he was a law graduate, he was enrolled as an advocate with
E the Bar Council of India on 18th March, 1993. The CEGAT was
replaced by the Central Excise and Service Tax Appellate
Tribunal (for short, 'the CESTAT/Tribunal'. Vide Finance Act,
2003, Section 129(6) vias introduced to the Customs Act, 1962
(for short 'Customs Act') in terms of which, the members of the
F Tribunal were debarred from appearing, acting or pleading
before it. Aggrieved by this amendment, the appellant along with
other appellants in other appeals claimed to have met the
Finance Minister and submitted a detailed representation
bringing out the inequities and arbitrariness claimed to be
G resulting from the insertion of Section 129(6) of the Customs
Act. The Tribunal, on 9th July, 2007, passed an order holding
that the appellant or the persons similarly situated, were not
entitled to appear before it in view of the bar contained in
Section 129(6) of the Customs Act. In the meanwhile, the
H Ministry also responded negatively to the representations
N.K. BAJPAI v. UNION OF INDIA AND ANR. 447
[SWATANTER KUMAR, J.]
submitted by the appellants. Faced with these circumstances, A
the appellants filed a writ petition before the High Court of Delhi
at New Delhi being Writ Petition No.6712 of 2007, which was
heard by a Division Bench of the High Court and was
dismissed vide judgment dated 13th April, 2009, hence, giving
rise to the present appeals. B
5. The Tribunal took the view that the word 'appellate
tribunal' as referred to in Section 129(6), is defined under
Section 2(1 B) of the Customs Act to mean the Customs, Excise
and Service Tax Appellate Tribunal constituted under Section C
129 of the Customs Act and any person ceasing to hold office
as President, Vice-President or Member cannot appear before
the Tribunal or its Benches anywhere in India in view of the bar
in Section 129(6). One of the appellants, namely, N.K. Bajpai,
was relieved from the case. The appellants had contended
before the High Court that Section 129(6) of the Customs Act D
is ultra vires Articles 14, 19(1)(g) and 21 of the Constitution of
India. It was further contended that, in any event, Section 129(6)
has no applicability to the appellants, in view of the fact that the
amendment was prospective, but when the appellants were
appointed to the Tribunal as well as when they demitted office, E
the said provision was not a part of the Customs Act. Thus, they
prayed for consequential relief. The High Court, by a detailed
judgment, rejected both- these contentions. It was of the view
that the predominant rationale for introduction of this provision
was to strengthen the cause of administration of justice and to F
remove what the Legislature, in its wisdom, felt was a perceived
class bias. It was further held that the restriction imposed could
not be said to be unreasonable and was held to withstand the
test of Article 19(6) of the Constitution. It also held that once
the right to appear, act or plead is taken away in respect of G
the Tribunal, since the same forum hears and adjudicates upon
the matters concerning three streams of law, the persons
concerned are automatically debarred from acting, appearing
or pleading before such forum, i.e., the Tribunal in respect of
all matters. The High Court even referred to some of the H
448 SUPREME COURT REPORTS [2012] 2 S.C.R.
A judgments of this Court, as well as to Article 220 of the
Constitution, which places a prohibition or limitation on the right
of a permanent Judge of the High Court to plead or act before
the Court of which he had been a permanent Judge and/or
before the Courts, Tribunals, Authorities over which the said
B Court had exercised supervisory jurisdiction.
6. Before we dwell upon the merits of the contentions
raised or the correctness of the reasons given by the High Court,
it will be appropriate for us to reproduce the provisions of
C Section 129 of the Customs Act, which read as follows :
"129 - Appellate Tribunal-(1) The Central Government
shall constitute an Appellate Tribunal to be called the
Customs, Excise and Service Tax Appellate Tribunal
consisting of as many judicial and technical members as
D . it thinks fit to exercise the powers and discharge the
functions conferred on the Appellate Tribunal by this Act.
(2) A judicial member shall be a person who has for at
least ten years held a judicial office in the territory of India
or who has been a member of the Indian Legal Service
-E
and has held a post in Grade I of that service or any
equivalent or higher post for at least three years, or who
has been an advocate for at least ten years.
· Explanation.-For the purposes of this sub-section-:-
F
(i) in computing th·e period during which a person has
held judicial office in the territory of India, there shall
be included any, P,eri9d.• after he has held any
judicial office, during which the person has been an
G advocate or has held the office of a member of a
Tribunal or any post, under the Union or a State,
requiring special knowledge of law; ·
(ii) in computing the period during which a person has
been advocate, there shall be included any period
H
N.K. BAJPAI v. UNION OF INDIA AND ANR. 449
[SWATANTER KUMAR, J.]
during which the person has held a judicial office, A
or the office of a member of a Tribunal or any post,
under the Union or a State, requiring special
knowledge of law after he became an advocate.
(2A) A technical member shall be a person who has been 8
a member of the Indian Customs and Central Excise
Service, Group A, and has held the post of Commissioner
of Customs or Central Excise or any equivalent or higher
post for at least three years.
(3) The Central Government shall appoint-- c
(a) a person who is or has been a Judge of a High
Court; or
(b) one of the members of the Appellate Tribunal, to be
0
the President thereof.
(4) The Central Government may appoint one or more
members of the Appellate Tribunal to be the Vice-
President, or, as the case may be, Vice-Presidents,
thereof. E
(5) A Vice-President shall exercise such of the powers and
perform such of the functions of the President as may be
delegated to him by the President by a general or special
order in writing.
F
(6) On ceasing to hold office, the President, Vice-
President or other Mel'Jlber shall not be entitled to appear,
act or plead before the Appellate Tribunal."
7. Part Ill, of the Constitution is the soul of the Constitution. G
It is not only a charter of the rights that are available to Indian
citizens, but is even completely in consonance with the basic
norms of human rights, recognized and accepted all over the
world. The fundamental rights are basic rights, but they are
neither uncontrolled nor without restrictions. In fact, the framers H
450 SUPREME COURT REPORTS [2012] 2 S.C.R.
A of the Indian Constitution themselves spelt out the nature of
restriction on such rights. Exceptions apart, normally the
restriction or power to regulate the manner of exercise of a right
would not frustrate the right. Take, for example, the most valuable
right even from amongst the fundamental rights, i.e., the right
B to freedom of speech and expression. This right is conferred
by Article 19(1 )(a) but in turn, the Constitution itself requires its
regulation in the interest of the 'public order' under Article 19(2).
The State could impose reasonable restrictions on the exercise
.of the rights conferred, in the interest of the sovereignty and
c integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality or in relation
· to contempt of Court, defamation or incitement of an offence.
Such restrictions are within the scope of constitutionally
permissible restriction. Exercise of legislative power in this
respect by the State can be subjected to judicial review, of
0
course, within a limited ambit. Firstly, the challenger must show
that the restriction imposed, at least prima facie, is violative of
the fundamental right. It is then that the burden lies upon the
State to show that the restriction applied is by due process of
law and is reasonable. If the restriction is not able to satisfy
E these tests or either of them, it will vitiate the law so enacted
and the action taken in furtherance thereto is unconstitutional.
It is difficult to anticipate the right to any freedom or liberty
without any reasonable restriction. Besides this, the State has
to function openly and in public interest. The width of the
F expression 'public interest' cannot be restricted to a particular
concept. It may relate to variety of matters including
administration of justice.
8. Let us also examine the fundamental rights and their
G restrictions as a constitutional concept. In the case of S.
Rangarajan v. P. Jagjivan Ram and Ors. [(1989) 2 SCC 574],
while dealing with the censorship of a film, this Court observed
'. ..... There does indeed have to be a compromise
H
N.K. BAJPAI v. UNION OF INDIA AND ANR. 451
[SWATANTER KUMAR, J.]
between the interest of freedom of expression and special A
interests. But we cannot simply balance the two interests
as if they are of equal weight. Our commitment of freedom
of expression demands that it cannot be suppressed
unless the situations created by allowing the freedom are
pressing and the community interest is endangered. The B
anticipated danger should not be remote, conjectural or
far-fetched. It should have proximate and direct nexus with
the expression. The expression of thought should be
intrinsically dangerous to the public interest. In other words,
the expression should be inseparably locked up with the c
a
action contemplated like the equivalent of 'spark in a
power keg'.'
9. Where the Court applies the test of 'proximate and direct
nexus with the expression', the Court also has to keep in mind
that the restriction should be founded on the principle of least D
invasiveness, i.e., the restriction should be imposed in a manner
and to the extent which is unavoidable in a given situation. The
Court would also take into consideration whether the
anticipated event would or would not be intrinsically dangerous
to public interest. E
'
10. Now, we have to examine the various tests that have
been applied over a period of time to examine the validity and/
or reasonability of the restrictions imposed upon the rights.
F
11. No person can be divested of his fundamental rights.
They are Incapable of being taken away or abridged. All that
the State can do, by exercise of its legislative power, is to
regulate these rights by imposition of reasonable restrictions
on them. Upon an analysis of the law, the following tests
emerge:- G
(a) The restriction can be imposed only by or under the
authority of law. It cannot be imposed by exercise
of executive power withou.t any law to back it up.
H
452 SUPREME COURT REPORTS [2012) 2 S.C.R.
A (b) Each restriction must be reasonable.
(c) A restriction must be related to the purpose
mentioned in Article 19(2).
12. The questions before us, thus, are whether the
B restriction imposed was reasonable and whether the purported
purpose of the same squarely fell within the relevant clauses
discussed above. The legislative determination of what
restriction to impose on a freedom is final and conclusive, as
it is not open to judicial review. The judgments of this Court
C have been consistent in taking the view that it is difficult to define
or explain the word "reasonable" with any precision. It will
always be dependent on the facts of a given case with
reference to the law which has been enacted to create a
restriction on the right. It is neither possible nor advisable to
D state any abstract standard or general pattern of
reasonableness as applicable uniformly to all cases.
13. A common thread runs through Parts Ill, IV and IVA of
the Constitution of India. One Part enumerates the fundamental
E rights, the second declares the fundamental principles of
governance and the third lays down the fundamental duties of
the citizens. While interpreting any of these provisions, it shall
always be advisable to examine the scope and impact of such
interpretation on all the three constitutional aspects emerging
F from these Parts. It is necessary to be clear about the meaning
of the word "fundamental" as used in the expression
"fundamental in the governance of the State" to. describe the
directive principles which have not legally been made
enforceable. Thus, the word "fundamental" has been used in
two different senses under our Constitution of India. The
G essential character of the fundamental rights is secured by
limitiQg the legislative power and by providing that any
transgression of the limitation would render the offending law
protanto void. The word "fundamental" in Article 37 of the
Constitution also means basic or essential, but it is used in the
H normative sense of setting, before the State, goals which it
N.K. BAJPAI v. UNION OF INDIA AND ANR. 453
[SWATANTER KUMAR, J.]
should try to achieve. As already noticed, the significance of A
the fundamental principles stated in the directive principles have
attained greater significance through judicial pronouncements.
14. As difficult as it is to anticipate the right to any freedom
or liberty without any reasonable restriction, equally difficult is
8
it to imagine the existence of a right not coupled with a duty.
The duty may be a direct or indirect consequence of a fair
assertion of the right. Although Part Ill of the Constitution of India
confers rights, still the duties and restrictions are inherent
thereunder. These rights are basic in nature and are recognized
and guaranteed as natural rights, inherent in the status of a C
citizen of a free country, but are not absolute in nature and
uncontrolled in operation. Each one of these rights is to be
controlled, curtailed and regulated, to a certain extent, by laws
made by the Parliament or the State Legislature. In spite of
there being a general presumption in favour of the D
constitutionality of a legislation under challenge in case of
allegations of violation of the right to freedom guaranteed by
clause (1) of Article 19 of the Constitution, on a prima facie
case of such violation being made out, the onus shifts upon the
State to show that the legislation comes within the permissible E
restrictions set out in clauses (2) to (6) of Article 19 and that
the particular restriction is reasonable. It is for the State to place
appropriate material justifying the restriction and its
reasonability on record.
F
15. The Advocates Act, 1961 (hereinafter referred to as
'the Advocates Act') itself was introduced to implement the
recommendations of the All India Bar Committee IT)ade in
1953. It aimed at establishment of an All India Bar Council, a
common roll for the advocates and integration of the Bar into G
a single class of practioners known as 'advocates'. It was also
to create autonomous Bar Councils, one for the whole of India
and one for each State. The Advocates Act provides for various
aspects of the legal profession. Under Section 29 of the
Advocates Act, only one class of persons is entitled to practice H
the profession of law, namely, advocates. Section 30 of the
454 SUPREME COURT REPORTS (2012] 2 S.C.R.
A Advocates Act provides that subject to the provisions of the Act,
every advocate whose name is entered in the State rolls shall,
as a matter of right, be entitled to practice throughout the
territories to which this Act applies, in all courts including the ·
SuprP-me Court of India. Such an Advocate would also be
B entitled to practice before any tribunal or person legally
authorized to take evidence and before any other authority or
person before whom such an advocate is, by or under any law
for the time being in force, entitled to practice. Section 33 of
the Advocates Act further states that except as otherwise
c provided in that Act or in any other law for the time being in
force, no person shall, on or after the appointed day, be entitled
to practice in any court or before any authority or person unless
he is enrolled as an advocate under the Advocates Act. A bare
reading of these three provisions clearly shows that this is a
statutory right given to an advocate to practice and an advocate
0
alone is the person who can practice before the courts,
tribunals, authorities and persons. But this right is statutorily
regulated by two conditions - one, that a person's name should
be on the State rolls and second, that he should be permitted
by the law for the time being in force, to practice before any
E authority or person. Where the advocate has a right to appear
before an authority or a person, that right can be denied by a
law that may be framed by the competent Legislature. Thus, the
right to practice is not an absolute right which is free of
restriction and is without any limitation. There are persons like
F Mukhtiars and others, who were earlier entitled to practice
before the Courts, but the Advocates Act itself took away the
right to practice which was available to them prior to its coming
into force. Thus, the Advocates Act placed a complete
prohibition upon the right to practice of those persons who were
G not advocates enrolled with the State Bar Council.
16. Therefore, the right to practice, which is not only a
statutory right under the provisions of the Advocates Act but
would also be a fundamental right under Article 19(1 )(g) of the
H Constitution is subject to reasonable restrictions. An argument
N.K. BAJPAI v. UNION OF INDIA AND ANR. 455
[SWATANTER KUMAR, J.]
could be raised that a person who has obtained a degree of A
law is entitled to practice anywhere in India, his right, as
enshrined in the Constitution and under the Advocates Act
cannot be restricted or regulated and also that it is not
necessary for him to enroll himself on any of the State rolls. This
argument would be fallacious in face of the provisions of the B
Advocates Act as well as the restrictions contemplated in Article
19(6) of the Constitution. The Legislature is entitle.ct to make a
law relating to the professional or technical qualifications
necessary for carrying on that profession.
17. We may also refer to a recent development of law in
c
relation to right of the advocates or former judicial officers, to
practice the profession of law. The Bar Council of India has
been vested with the general power to make rules under
. Section 49 of the Advocates Act. In furtherance to this power
vested with it, the Bar Council of India has framed the Bar D
Council of India Rules. Chapter Ill of these Rules deals with the
conditions for the right to practice. Rule 7 of Chapter Ill of the
said Rules is quite in pari rnateria with Section 129(6) of the
Act and it reads as under :
E
"A11 officer after his retirement or otherwise ceasing to be
in service for any reasons, if enrolled as an Advocate shall
not practice in any of the Judicial, Administrative Courts/
Tribunals/Authorities, which are presided over by an officer
equivalent or lower to the post which such officer last held." F
18. Rules 7 and 7A of the Bar Council of India Rules, were
introduced by the Bar Council of India on 14th October, 2007.
19. This Rule clearly mandates that upon his retirement or
when otherwise ceasing to be in service for any reason, a G
person will not be able to practice in the administrative tribunal,
other tribunals, authorities, courts etc. over which he had
presided and which were headed by an officer in a post
equivalent to or lower than the post which he had held. The
definition in the explanation of what an officer shall mean and H
456 SUPREME COURT REPORTS (2012] 2 S.C.R.
A include further widened the scope of interpretation. Not only this,
requiring adherence to professional standard and values, Rule
7A further makes it mandatory that a person who has been
dismissed, retrenched, compulsorily retired, removed or
otherwise retired from Government Service or service of the
B High Court or Supreme Court on the charges of corruption,
dishonesty unbecoming of an employee, etc. would not even
be enrolled as an advocate on the rolls of a State Bar Council.
These provisions clearly demonstrate the intention of the
Legislature to place restrictions for entry to the profession of
c law. These restrictions have to be decided only on the
touchstone of reasonableness and legislative competency. The
restriction which withstands such a test would be enforceable
in accordance with law.
20. The contention raised on behalf of the appellants before
D us is that Section 129(6) of the Customs Act imposes a
complete restriction upon the appellants and, therefore, is
unconstitutional. While examining the merit of this contention,
we must notice that there is .no challenge to the legislative
competence of the Legislature which enacted and inserted
E Section 129(6) of the Act. Once there is no challenge to the
legislative competence and the provision remains as a valid
piece of legislation on the statute book, then the only question
left for this Court to examine is whether this provision is so
unreasonable that it inflicts an absolute restriction upon carrying
F on of the profession by the appellants. For two different
reasons, we are unable to hold that the restriction imposed
under Section 129(6) of the Act is unreasonable or ultra vires.
Firstly, it is not an absolute restriction. It is a partial restriction
to the extent that the persons who have held the office of the
G President, Vice-President or other Members of the Tribunal
cannot appear, act or plead before that Tribunal. In modern
times, there are'~o many courts and tribunals in the country and
in every State, so that this restriction would hardly jeopardize
the interests of any hardworking and upright advocate. The right
H of such advocate to practice in the High Courts, District Courts
N.K. BAJ PAI v. UNION OF INDIA AND ANR. 457
[SWATANTER KUMAR, J.]
and other Tribunals established by the State or the Central A
Government other than the CESTAT remains unaffected. Thus,
the field of practice is wide open, in which there is no prohibition
upon the practice by a person covered under the provisions of
Section 129(6) of the Customs Act. Secondly, such a restriction
is intended to serve a larger public interest and to uplift the B
professional values and standards of advocacy in the country.
In fact, it would add further to public confidence in the
administration of justice by the Tribunal, in discharge of its
functions. Thus, it cannot be held that the restriction has been
introduced without any purpose or object. In fact, one finds a c
clear nexus between the mischief sought to be avoided and the
object aimed to be achieved.
21. Now, we may deal with some of the judgments, where
similar restrictions imposed by law were found to be valid and
unexceptionable. In Sukumar Mukherjee v. State of West D
Bengal [(1993)3 SCC 723, the State of West Bengal had
prohibited private practice by medical practioners who were
also teaching in the medical institutions. This was provided
under Section 9 of the West Bengal State Health Service Act,
1990. The argument raised was that this provision was E
repugnant to Section 27 of the Indian Medical Council Act, 1956
which, in turn, provides for the right of a registered medi~al
practitioner to practice, as well as an argument that it ultra vires
Articles 19(1)(g), 19(6) and 14 of the Constitution of India. This
Court repelled both these contentions and held that the F
prohibition against the members of the West Bengal Medical
Education Service (WBMES) from practicing privately was not
unconstitutional or repugnant to the statutory provisions. It only
regulated a class of persons, i.e., the persons who were
members of that service and secondly, this was intended to G
maintain standards of the medical education which was the very
object of enacting the Indian Medical Council Act.
22. Similarly, while dealing with the question as to whether
the closure of butcher houses on national holidays or on certain H
458 SUPREME COURT REPORTS [2012] 2 S.C.R.
A particular days was unconstitutional and violative of the
fundamental right to carry on business in terms of Articles
19(1)(g), 19(6) and 14 of the Constitution, in the case of
Municipal Corporation of the City of Ahmedabad & Ors. v. Jan
Mohammed Usmanbhai & Anr. [(1986) 3 SCC 20], a
B Constitution Bench of this Court, while rejecting the challenge,
held as under :
"17. Clause (6) of Article 19 protects a law which imposes
in the interest of general public reasonable restrictions on
the exercise of the right conferred by sub-clause (g) of
c clause (1) of Article 19. Obviously it is left to the court in
case of a dispute to determine the reasonableness of the
restrictions imposed by the law. In determining that
question the court cannot proceed on a general notion of
what is reasonable in the abstract or even on a
D consideration of what is reasonable from the point of view
of the person or persons on whom the restrictions are
imposed. The right conferred by sub-clause (g) is
expressed in general language and if there had been no
qualifying provision like clause (6) the right so conferred
E would have been an absolute one. To the persons who
have this right any restriction will be irksome and may well
be regarded by them as unreasonable. But the question
cannot be decided on that basis. What the court has to do
is to consider whether the restrictions imposed are
F reasonable in the interest of general public. In the State of
Madras v. V. G. Row this Court laid down the test of
reasonableness in the following terms:
"It is important in this context to bear in mind that
the test of reasonableness, wherever prescribed,
G
should be applied to each individual statute
impugned, and no abstract standard, or general
pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right
alleged to have been infringed, the underlying
H
N.K. BAJ PAI v. UNION OF INDIA AND ANR. 459
[SWATANTER KUMAR, J.]
purpose of the restrictions imposed, the extent and A
urgency of the evil sought to be remedied thereby,
the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the
judicial verdict."
B
19. The expression 'in the interest of general public' js of
wide import comprehending public order, public health,
public security, morals, economic welfare of the community
and the objects mentioned in Part IV of the Constitution.
Nobody can dispute a law providing for basic amenities; C
for the dignity of human labour like provision for canteen,
rest rooms, facilities for drinking water, latrines and urinals
etc. as a social welfare measure in the interest of general
public. Likewise in respect of legislations and notifications
concerning the wages, working conditions or the other
amenities for the working class, the courts have adopted D
a liberal attitude and the interest of the workers has been
protected notwithstanding the hardship that might be
caused to the employers. It was, therefore, open to the
legislature or the authority concerned, to ensure proper
holidays for the municipal staff working in the municipal E
slaughterhouses and provide certain closed days in the
year. Even according to the observations of the High Court
nobody could have any objection to the standing orders
issued by the Municipal Commissioner under Section
466(1)(D)(b) if municipal slaughterhouses were closed on F
certain days in· order to ensure proper holidays for the
municipal staff working in the municipal slaughterhouses.
The only objection was that the standing orders direct
closure of the slaughterhouses on Janmashtami, Jain
Samvatsari, October 2 (Mahatma Gandhiji's birthday), G
February 12 (Shraddha day of Mahatma Gandhi), January
30 (Mahatma Gc;lndhiji'sNirwan day), MahavirJayanti and
Ram Navami. These days were declared as holidays
under the standing orders for the Municipal Corporation
slaughterhouses. H
460 SUPREME COURT REPORTS (2012] 2 S.C.R.
A 20. The tests of reasonableness have to be viewed in the
context of the issues which faced the legislature. In the
construction of such laws and in judging their validity,
courts must approach the problem from the point of view
of furthering the social interest which it is the purpose of
B the legislation to promote. They are not in these matters
. functioning in vacuo but as part of society which is trying,
by the enacted law, to solve its problems and furthering the
moral and material progress of the community as a whole.
(See Jyoti Persh adv. Union Territory of Delhi) If the
c expression 'in the interest of general public' is of wide
import comprising public order, public security and public
morals, it cannot be said that the standing orders closing
the slaughterhouses on seven days is not in the interest
of general public.
D 21. In view of the aforesaid discussion we are not prepared
to hold that the closure of the slaughter house on seven
days specified in the two standing orders in any way put
an unreasonable restriction on the fundamental right
guaranteed to the petitioner-respondent under Article
E 19(1)(g) of the Constitution.
22. This leads us to the second conter:ition raised on behalf
of the respondent, which is based on Article 14 of the
Constitution. The High Court had repelled this contention
F for a valid reason with which we fully agree.
23. It is now well established that while Article 14 forbids
class legislation it does not forbid reasonable
classification for the purposes of legislation and that in
order to pass the test of permissible classification two
G conditions must be fulfilled, namely, (i) the classification
must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together
from others left out of the group, and (ii) such differentia
must have rational relation to the object sought to be
H
N.K. BAJPAI v. UNION OF INDIA AND ANR. 461
[SWATANTER KUMAR, J.]
achieved by the statute in question. The classification, may A
be founded on different basis, namely, geographical, or
according to objects or occupations or the like and what
is necessary is that there must be a nexus between the
basis of classification and the object of the Act under
consideration. Ther~ is always a presumption in favour of B
constitutionality of an enactment and the burden is upon
him who attacks it, to show that there has been a clear
violation of the constitutional principles. The courts must
presume that the legislature understands and correctly
appreciates the needs of its own people, that its laws are c
directed against problems made manifest by experience
and that its discriminations are based on adequate
grounds. It must be borne in mind that the legislature is free
to recognise degrees of harm and may confine its
restrictions to those cases where the need is deemed to 0
be the clearest, and finally that in order to sustain the
presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of
common rapport, the history of the times and may assume
every state of facts which can be conceived to be existing
at the time of legislation. - E
24. The objects sought to be achieved by the impugned
standing orders are the preservation, protection and
improvement of livestock. Cows, bulls, bullocks and calves
of cows are no doubt the most important cattle for the F
agricultural economy of this country. Female buffaloes yield
a large quantity of milk and are, therefore, well looked after
and do not need as much protection as cows yielding a
small quantity of milk require. As draught cattle male
buffaloes are not half as useful as bullocks. Sheep and G
goat give very little milk compared to the cows and the
female buffaloes, and have practically no utility as draught
animals. These different categories of animals being
susceptible of classification into separate groups on the
basis of their usefulness to society, the butchers who kill H
462 SUPREME COURT REPORTS [2012] 2 S.C.R.
A · each category of animals may also be placed in distinct
classes according to the effect produced on society by the
carrying on of their respective occupations. The butchers
who slaughter cattle formed the well defined class based
on their occupation. That classification is based on
B intelligible differentia and distinguishes them from those
who kill goats and sheep and this differentiation has a close
connection with the object sought to be achieved by the
impugned Act, namely the preservation, protection and the
improvement of our livestock. The attainment of these
c objectives may well necessitate that the slaughterers of
cattle should be dealt with differently than the slaughterers
of say, goats and sheep. The standing orders, therefore,
in .our view, adopt a classification based on sound and
intelligible basis and can quite clearly stand the test laid
down above." '
D
23. Another Constitution Bench of this.Court, while dealing
with the provisions of the Legal Practitioners Act, 1879, a pre-
constitution law, considered the correctness or effect of
restrictions on the rights of a Mukhtiar to act or plead before
E the Civil Court, under Rule 2-of the Rules, framed under the
provisions of that Act by the High Court and held that Sections
9 and 11 of that Act would have to be read together. It would
be wrong to treat the mere right to practice conferred by
Section 9 of the Legal Practioners Act as disassociated from
F the functions, powers and duties of Mukhtiar referred to in ·
Section 11 of that Act. The right to appear before a court is
controlled by these provisions. Primarily holding that Rule 2 as
enacted by the High Court was not in excess of the rule-making
power under Section 11 of that Act, this Court also held that
G the Mukhtiars cannot complain of any violation of their
fundamental right to practice the profession, to which they have
been enrolled under the provisions of that Act. In other wbrds,
the challenge on the ground of inequality and
unreasonableness, both, were repelled by this Court. {Ref.
H Devata Prasad Singh Chaudhuri & Ors. v. The Hon'ble the
N.K. BAJ PAI v. UNION OF INDIA AND ANR. 463
[SWATANTER KUMAR, J.]
Chief Justice and Judges of the Patna High Court [AIR 1962 A
SC 201]}.
24. There are certain legislations which restrict appearance
of advocates before specialized or specific tribunals. These
kinds of restrictions upon the right of the lawyers to appear B
before those tribunals have been challenged in the courts from
time to time. The courts have consistently taken the view that
limited restrictions are neither violative of the fundamental rights,
nor do they tantamount to denying the equality before law in
terms of Article 14 of the Constitution. In the case of H.S. C
Srinivasa Raghavachar & Ors. v. State of Kamataka [(1987)
2 SCC 692), this Court was primarily concerned with the validity
of Section 44(1) of the Karnataka Land Reforms Amendment
Act, 1974 which was challenged on the ground that it was ultra
vires Articles 39(b) and 39(c) of the Constitution and was
destructive of the basic structure of the Constitution. An ancillary D
question that fell for the consideration of this Court was where
sub-section (8) of Section 48 of that Act, which prohibited legal
practitioners from appearing in such proceedings before the
Tribunals, was repugnant to Section 30 of the Advocates Act,
and Section 14 of the Bar Council of India Act. The challenge E
was primarily accepted by this Court on the ground that it was
a -case of lack of legislative competence, inasmuch as the State
Legislature was not competent to make a law repugnant to the
laws made by the Parliament pursuant to Entries 77 and 78 of
List I of the Seventh Schedule to the Constitution. This Court F
directed that Section 48(8) of that Act would not be enforced
· against the advocates to prevent them from appearing before
the Tribunal. This case, relied upon by the learned counsel for
the appellant, is completely different on facts and in law. In the
case in hand, the consistent position is that there is no challenge G
to the legislative competence in amending Section 129(6) of
the Customs Act. The challenge is limited to the ground of its
being ultra vi res Articles 19(1 )(g}, 19(6) and 14 of the
Constitution. Therefore, the counsel cannot draw any advantage
from that case. H
.464 SUPREME COURT REPORTS (2012] 2 S.C.R.
A 25. In the case of Paradip Port Trust, Paradip v. Their
Workmen [AIR 1977 SC 36], this Court dealt with the right of
the legal practitioners to represent employers before the
Industrial Tribunal that too only with the consent of the opposite
party and leave of the Tribunal. The restriction was limited in
B its scope and impact and this Court held that it was not violative
of the right of the legal practitioners as they will have to conform
to the conditions laid down in Section 36(4) of the Industrial
Disputes Act, 1947.
26. Refuting contentions that this provision would be
C repugnant to Section 30 of the Advocates Act, this Court held
that the Industrial Disputes Act was a special piece of
legislation with the aim of labour welfare and representation
before the adjudicative authorities therein has been specifically
provided for with a clear object in view.
D
27. In the case of Lingappa Pochamma Appelwar v. State
of Maharashtra & Anr. ((1985) 1 SCC 479], in somewhat
similar circumstances relating to the provisions of the
Maharashtra Restoration of Lands to Scheduled Tribes Act,
E 1974, this Court clearly rejected the contention that an advocate
enrolled under the Advocates Act, has an absolute right to
appear before any of the courts and tribunals in the country ..
Though at that time Section 30 of the Advocates Act had not
come into force, but still the Court felt that the right of an
F advocate to practice after being brought on the roll of the State
Bar Council is, just what is conferred upon him under the Bar
Councils Act, 1926 and therefore, Section 9(a) of the
Maharashtra Restoration of Lands to Scheduled Tribes Act
which placed that restriction was not unconstitutional or
G impinging on the rights of the advocates to practice. The Court
also observed that it was well settled that apart from under the
provisions of Article 22 of the Constitution, no litigant has a
fundamental right to be represented by a lawyer in any Court.
28. In the case of Indian Council of Legal Aid and Advice
H v. Bar Council of India & Anr. [(1995) 1 SCC 732], this Court
N.K. BAJ PAI v. UNION OF INDIA AND ANR. 465
[SWATANTER KUMAR, J.]
while holding that a prohibition against a person, more than 45 A
years of age being enrolled as an advocate was violative of
Article 14 of the Constitution as being discriminatory and
arbitrary, made some observations with regard to duties and
functions of the advocates and Bar Councils, for the dignity and
purity of the profession, which are worthy of being noticed and B
are accordingly reproduced :
"3. It will be seen from the above provisions that unless a
person is enrolled as art advocate by a State Bar Council,
he shall have no right to practise in a court of law or before
any other Tribunal or authority. Once a person fulfils the C
requirements of Section 24 for enrolment, he becomes
entitled to be enrolled c;is an advocate and on such
enrolment he acquires a right to practise as stated above.
Having thus acquired a right to practise he incurs certain
obligations in regard to his conduct as a member of the D
noble profession. The Bar Councils are enjoined with the
duty to act as sentinels of professional conduct and must
ensure that the dignity and purity of the profession are in
no way undermined. Its job is to uphold the standards of
professional conduct and etiquette. Thus every State Bar E
Council and the Bar Council of India has a public duty to
perform, namely, to ensure that the monopoly of practice
granted under the Act is not misused or abused by a
person who is enrolled as an advocate. The Bar Councils
have been created at the State le..vel as well as the Central F
level not only to protect the rights, interests and privileges
of its members but also to protect the litigating public by
ensuring that high and noble traditions are maintained so
that the purity and dignity of the profession are not
jeopardized. It is generally believed that members of the G
legal profession have certain social obligations, e.g., to
render "pro bono publico" service to the poor and the
underprivileged. Since the duty of a lawyer is to assist the
court in the administration of justice, the practice of law has
a public utility flavour and, therefore, he must strictly ;:ind H
466 SUPREME COURT REPORTS [2012] 2 S.C.R.
A scrupulously abide by the Code of Conduct behaving the
noble profession and must not indulge in any activity which
may tend to lower the image of the profession in society.
That is why the functions of the Bar Council include the
laying down of standards of professionaf conduct and
B etiquette which advocates must follow to maintain the
dignity and purity of the profession."
29. An objective analysis of the above principles makes it
clear that except where the challenge is on the grounds of
legislative incompetence or the restriction imposed was ex
C facie unreasonable, arbitrary and violative of Part Ill of the
Constitution of India, the restriction would be held to be valid
and enforceable.
30. The next contention raised on behalf of the appellants
D before us is that the entire restriction is based on an illogical
presumption of likelihood of bias. The presumption of legal bias
being without any basis and ill-founded, the amendment itself
is liable to be declared ultra vires. This contention, again, does
not carry any weight. This argument is misconceived on facts
E and law, both. It is not only the mischief of likelihood of bias
which is sought to be prevented by the amendment but the
amendment, has a definite purpose and object to achieve
whi~h is in the larger public interest. Such legislative attempt,
not only to adhere to but to enhance the values and dignity of
F the legal profession, would add to the confidence of the
common litigant in the administration of justice and the
performance of duties by the Tribunal.
31. For exampl~. a person who is otherwise qualified to
be admitted as an advocate, but is either in full or part time
G service or employment, or is engaged in any trade, business
or profession, shall not be admitted as an advocate, was a
restriction imposed by the Bar Council of State of Maharasthra
and Goa. Upon challenge, this Court had taken the view that
under Article 19(1 )(g), all citizens have a right to practice any
H profession or carry on any occupation, trade or business. The
N.K. BAJPAI v. UNION OF INDIA AND ANR. 467
[SWATANTER KUMAR, J.]
term 'any profession' may include even plurality of professions. A
However, this is not an absolute right and is subject to
reasonable restrictions under Article 19(6). It cannot be
gainsaid that litigants are also members of general public and
if in their interest, any rule imposes a restriction on the entry to
the legal profession and if such restriction is founded to be B
reasonable, Article 19(1)(g) would not get stultified {Or. Haniraj
L. Chulani v. Bar Council, State of Maharashtra & Goa [(1996)
3 sec 342]}.
32. In this very case, the Court also observed that these C
well- established connotations and contours of the requirements
of the legal profession itself supply the necessary guidelines
to the concerned Bar Councils or Legislatures to frame Rules
for regulating the entry of the persons to the profession.
33. This judgment is relatable to the legal profession and D
we have already noticed the judgments of this Court relating to
other professions. Imposition of restrictions is a concept inbuilt
into the enjoyment of fundamental rights, as no right can exist
without a corresponding reasonable restriction placed on it.
When the restrictions are placed upon the carrying on of a E
profession or to ensure that the intent, object or purpose
achieved thereby would be enhancing the purity of public life,
such object would certainly be throttled if there arose a situation
of conflict between private interest and public duty. The
principle of private interest giving way to public interest is a F
settled cannon, not only of administrative jurisprudence, but of
statutory interpretation as well. Having regard to the prevalent
values and conditions of the profession, most of the legal
practitioners would not stoop to unhealthy practices or tactics
but the Legislature, in its wisdom, has considered it desirable G
to eliminate any possibility of conflict between the interest and
duty and aimed at achieving this object or purpose by
prescribing the requisite restrictions. With the development of
law, the courts are expected to consider, in contradistinction
to private and public interest, the institutional interest and
H
468 SUPREME COURT REPORTS (2012) 2 S.C.R.
A expectations of the public at large from an institution. These are
the balancing tests which are applied by the courts even in the
proces;:; of interpretation or examining of the constitutional
validity of a provision.
B 34. Under the English Law, the genesis of bias has been
described as the perception that the court is free from bias, that
it·is objectively impartial stems from the overworked aphorism
of Lord Hewart C.J. in R. v. Sussex Justices Ex. P. McCarthy
((1924) 1 KB 256 KBD at 259) wherein he said, "It is not merely
of some importance but is of fundamental importance that
C justice should not only be done but should manifestly and
undoubtedly be seen to be done." However, later the courts
there felt that too heavy a reliance upon the Hewart aphorism
in instances of alleged bias produces the danger that the
appearance of bias or injustice becomes more important than
D the absence of actual bias, the doing of justice itself. It is,
therefore, of importance that perceived bias is not too readily
inferred, such as to negate the doing of justice. In Porter v.
Magill ((2002) 2 AC 357), the House of Lords finally decided
· the proper test for finding perceived or apparent bias, after
E judicial debate for over two decades, which displayed the
welcome interplay of judicial pronouncements within the
jurisdictions of the English common law, Scotland and
Strasbourg jurisprudence. The test is now whether the fair-
minded observer, having considered the facts, would consider
F that there was a reasonable possibility that the tribunal was
biased. [See Sir Louis Blom, Q.C., 'Bias, Malfunction in Judicial
Decision-making', (2009) Public Law 199).
35. Bias must be shown to be present. Probability of bias,
G possibility of bias and reasonable suspicion that bias migh't
have affected the decision are terms of different connotations.
They broadly fall under two categories, i.e., suspicion of bias
and likelihood of bias. Likelihood of bias would be the
possibility of bias and bias which can be shown to be present,
while suspicion of bias would be the probability or reasonable
H
N.K. BAJPAI v. UNION OF INDIA AND ANR. 469
[SWATANTER KUMAR, J.]
suspicion of bias. The former lead to vitiation of action, while A
the latter could hardly be the foundation for further examination
of action, with reference to the facts and circumstances of a
given case. The correct test would be to examine whether there
appears to be a real danger of bias or whether there is only a
probability or even a preponderance of probability of such bias, B
in the circumstances of a given case. If it falls in the prior
category, the decision would attract judicial chastise but if it falls
in the latter, it would hardly effect the decision, much less
adversely.
36. Harry Woolf, Jeffey Jowell and Andrew Le Sueur, in. C
their recent book De Smith's Judicial Review (Sixth Edition)
have referred to the concept of 'automatic disqualification', that
is, where the element of bias is present and would lead to
disqualification on its own. This rule was invoked to invalidate
the CQmposition of a disciplinary tribunal of the Council of the D
Inns of .court, since one of the members of the tribunal had
been a member of the Professional Conduct and Complaints
Committee of the Bar Council (PCCC) which was the body
responsible for the decision to prosecute a member of the Bar
before that Tribunal. It was held by the Visitors to _the Inns of E
Court that each member of the PCCC had a common interest
in the prosecution and, therefore, was acting as a judge in his
or her own cause. The rule was not free of exceptions. It could
even be applied with certain flexibility. On the subject of judicial
bias, a greater degree of flexibility has to be applied in cases F
of automatic disqualification. For example, where the public
became aware that a senior member of a firm was acting
against one of the parties to the litigation, but, on another matter,
it was held that automatic disqualification would not be
necessary, as the connection between the firm's success in the G
case and its profits was "tenuous" and the party had effectively
waived the right to challenge an adverse decision in the former
litigation.
37. The element of bias by itself may not always necessarily
H
470 SUPREME COURT REPORTS [2012] 2 S.C.R.
A vitiate an action. The Court would have to examine the facts of
a given case. Reverting to the facts of the present case, despite'
their absence from the object and reasons for the amendment
of Section 129(6) of the Customs Act it cannot be held that the
element of bias was presumptuous or without any basis or
B 0bject. It may be one of the relevant factors which probably
would have weighed on the mind of the Legislature. When you
have been a member of a Tribunal over a long period, and other
members have been your co-members whether judicial or
technical, it is difficult to hold that there would be no possibility
c of bias or no real danger of bias. Even if we rule out this
possibility, still, it will always be better advised and in the
institutional interest that restrictions are enforced. Then alone
will the mind of the litigant be free from a lurking doubt of
likelihood of bias and this would enhance the image of the
Tribunal. The restriction, as already discussed, leaves the entire
0
_field of legal profession wide open for the appellants and all
persons situated alike except to practice before CESTAT.
38. Besides the possibility of bias, there is a legitimate
~)<pectation on the part of a litigant before the Tribunal that there
E shall not be .any possibility of justice being denied or being not
done fairly. These are the concepts which are very difficult to
be defined and demarcated with precision. Some element of
uncertainty would be prevalent. There can be removal of doubts
to the facts of a given case that would help in determining
F matters with somewhat greater uncertainty. The contention of
the petitioners that there has to be empirical data to suggest
their practice before the Tribu.nal resulted in instances of
misdemeanor which would have propelled the respondents to
insert such a provision in the enactment, has rightly been
G rejected by the High Court. It may not even be proper to
introduce such amendments with reference to any data. Suffice
it to note that these amendments are primarily based upon
public perception and normal behaviour of an ordinary human
being. It is difficult to define cases where element of bias would
H affect the decision and where it would not, by a precise line of
N.K. BAJPAI v. UNION OF INDIA AND ANR. 471
[SWATANTER KUMAR, J.]
distinction. Even in a group, a person possessing a special A
knowledge may be in a position to influence the gr0up and his
bias may operate in a subtle manner.
39. The general .principles of bias are equally applicable
to our administrative and civil jurisprudence. Members of the 8
·Tribunals, called upon to try issues in judicial or quasi-judicial
proceedings should act judicially. Reasonable apprehension is
equitable to possible apprehension and, therefore, the test is
whether the litigant reasonably apprehends that bias is
attributable to a member of the Tribunal. Repelling the C
apprehension of bias in administrative action, the Courts have
taken the view that in the case where a remote relationship
existed, separated by six degrees, which was the foundation
of challenge of selection to a post of clerk in the Gram
Panchayat High School, the challenge was not sustainable. It
is difficult to rule out the possibility of a reasonable D
apprehension in the minds of the litigants who approach the
Tribunal for justice, if the reasonable restriction introduced in
Section 129(6) of the Customs Act is not enforced. Reference
can be made to the judgments of this Court in the case of
Manak Lal v. Dr. Prem Chand [AIR 1957 SC 425] and E
Rasmiranjan Das v. Sarojkanta Behera & Ors.[(2000) 10 SCC
502].
40. This Court in the case of Kumaon Manda/ Vikas
Nigam Ltd. v. Girja Shankar Pant and Ors. [(2001) 1 SCC F
182], having regard to the changing structure of the society,
stated that modernization of the society with the passage of
time had its due impact on the concept of bias as well. The
courts have applied the tests of real likelihood and reasonable
suspicion. These doctrines were discussed in the case of S. G
Parthasarathi v. State of Andhra Pradesh [(1974) 3 SCC 459].
The Court found that 'real likelihood' and 'reasonable suspicion'
were terms really inconsistent with each other and the Court
must make a determination, on the basis of the whole evidence
before it, whether a reasonable man would, in the circumstanee, H
472 SUPREME COURT REPORTS [2012] 2 S.C.R.
A infer that there is real likelihood of bias or not. The Court has
to examine the matter from the view point of the people. The
term 'bias' is used to denote a departure from the standing of
even handed justice. After discussing this law, another Bench
of this Court in the case of State of Punjab v. V.K. Khanna
B [(2001) 2 SCC 330], finally held as under:-
"8. The test, therefore, is as to whether there is a
mere apprehension of bias or there is a real danger of
·bias and it is on this score that the surrounding
circumstances must and ought to be collated and
c necessary conclusion drawn therefrom. In the event,
however, the conclusion is otherwise that there is existing
a real danger of bias administrative action cannot be
sustained. If on the other hand allegations pertain to rather
fanciful apprehension in administrative action, question of
D declaring them to be unsustainable on the basis therefor,
would not arise."
41. The word 't;>ias' in popular English parlance stands
included within the attributes and broader purview of the word
E 'malice', which in general connotation, means and implies
'spite' or 'ill will'. It is also now a well settled proposition that
existence of the element of 'bias' is to be inferred as per the
standard and comprehension of a reasonable man. The bias
may also be malicious act having some element of intention
F without just cause or excuse. In case of malice or ill will, it may
be an actual act conveying negativity but the element of bias
could be apparent or reasonably seen without any negative
result and could form part of a general public perception.
42. Now, we shall proceed to examine the merits of the
G contention raised that the provisions of Section 129(6) of the
Customs Act cannot be given effect to retrospectively. The
argument advanced is that the appellants were enrolled as
advocates when the provisions of Section 129(6) were not on
the· statute book. After ceasing to be members of the Tribunal
H and starting their practice as advocates, such a bar was not
N.K. BAJPAI v. UNION OF INDIA AND ANR. 473
[SWATANTER KUMAR, J.]
operative. Now, after the lapse of so many years, their right to A
practice before such Tribunals cannot be taken away and to that
extent, in any case, the provisions of Section 129(6) cannot be
made retrospective.
43. As already noticed by us above, the right to practice 8
law is a statutory right. The statutory right itself is restricted one.
It is controlled by the provisions of the Advocates Act, 1961 as
well as the rules framed by the Bar Council in that Act. A
statutory right cannot be placed at a higher pedestal to a
fundamental right. Even a fundamental right is subject to C
restriction and control. At the cost of repetition, we may notice
that it is not possible to imagine a right without restriction and
controls in the present society. When the appellants were
enrolled as advocates as well as when they started practicing
as advocates, their right was subject to the limitations under
any applicable Act or under the constitutional limitations, as the D
case may be. One must clearly understand a distinction
between a law being enforced retrospectively and a law that
operates retroactively. The restriction in the present case is a
clear example where the right to practice before a limited forum
is being taken away in presenti while leaving all other forums E
open for practice by the appellants. Though such a restriction
may have the effect of relating back to a date prior to the
presenti. In that sense, the law stricto sensu is not retrospective,
but would be retroactive. It is not for the Court to interfere with
the implementation of a restriction, which is otherwise valid in F
law, only on the ground that it has the effect of restricting the
rights of the people who attain that status prior to the
introduction of the restriction. It is certainly not a case of settled
or vested rights, which are incapable of being interfered with.
It is a settled canon of law that the rights are subject to G
restrictions and the restrictions, if reasonable, are subject to
judicial review of a very limited scope.
44. We do not find any reason to accept the submission
that enforcement of the restriction retroactively would be
H
474 SUPREME COURT REPORTS [2012] 2 S.C.R.
A impermissible, particular:y in the facts and circumstances of the
present case.
45. We may refer to the case of R. v. Inhabitants of St.
Mary, Whitechapel [(1881) 12 QB 149] whereby under Section
2 of the Poor Removal Act, 1846, 'No woman residing in any
8
parish with her husband at the time of his death shall be
removed ... from such parish, for twelve calendar months after
a
his death, if she so long continue a widow.' In this case, widow
was sought to be removed within such period of 12 months,
on the grounds that her husband had died before the coming
C into force of that Act. The question was whether that provision
applied retrospectively. Lord Denman, C.J, held that 'the
statute is, in its direct operation, prospective, as it relates to
future removals only and that it is not properly called a
retrospective statute because a part of the requisites for its
D action is drawn from its time antecedent to its passing'. Thus,
the provision was held not to be retrospective.
46. Examined the case of the appellants from this angle,
it would mean that the law is not at all retrospective even though
E the retirement or date of ceasing to be a member of the Tribunal
may have been on a date anterior to the date of passing of the
law.
47. We may also notice that the restriction is not punitive,
in that sense, but is merely a criterion for eligibility for continuing
F to practice law before the Tribunal.
'
48. Earlier, the nature of law, as substantive or procedural,
was taken as one of the determinative factors for judging the
retrospective operation of a statute. However, with the
G development of law, this distinction has become finer and of
less significance. Justice G.P. Singh, in his Principles of
Statutory Interpretation (12th Edition, 2010) has stated that the
classification of a statute, as either a substantive or procedural
law, does not necessarily determine whether it may have
H retrospective operation. For example, a statute of limitation is
N.K. BAJPAI v. UNION OF INDIA AND ANR. 475
[SWATANTER KUMAR, J.]
generally regarded as procedural, but its application to a past A
cause of action has the effect of reviving or extinguishing a right
to sue. Such an operation cannot be said to be procedural. It
has also been noted that the rule of retrospective construction
a
is not applicable merely because part of the requisites for
its action is drawn from a time antecedent to the passing of B
the relevant law. For these reasons, the rule against
retrospectivity has also been stated, in recent years, to avoid
the classification of statutes into substantive and procedural and
the usage of words like 'existing' or 'vested'. Referring to a
judgment of the Australian High Court in the case of Maxwell c
v. Murphy [(1957) 96 CLR 261], it is recorded as follows :
"One such formulation by Dixon C.J. is as follows : 'The
general rule of the common law is that a statute changing
the law ought not, unless the intention appears with
reasonable certainty, to be understood as applying to facts D
or events that have already occurred in such a way as to
confer or impose or otherwise affect rights or liabilities
which the law had defined by reference to the past events.
But given rights and liabilities fixed by reference to the past
facts, matters or events, the law appointing or regulating E
the manner in which they are to be enforced or their
enjoyment is to be secured by judicial remedy is not within
the application of such a pre.sumption'."
49. In such matters, in judiciously examining the question F
of retrospectivity or otherwise, the relevant considerations
include the circumstances in which legislation was created and
the test of fairness. The principles of statutory interpretation have
expanded. With the development of law, it is desirable that the
Courts should apply the latest tools of interpretation to arrive G
at a more meaningful and definite conclusion. The doctrine of
fairness has also been applied by this Court in the case of Vijay
v. State of Maharashtra & Ors.[(2006) 6 SCC 289]. A
restriction was introduced providing that a person shall not be
a member of a Panchayat or continue as such, if he has been
H
476 SUPREME COURT REPORTS [2012] 2 S.C.R.
A elected as Councilor of Zila Parishad or as a member of the
Panchayat Samiti. This restriction was held to be retrospective
and applicable to the existing members of the Panchayat also.
Applying the rule of literal construction, this Court held that when
a literal reading of the provision giving retrospective effect does
B not produce absurdity or anomaly, the same would not be
construed only prospective. This was further strengthened by
the application of the rule of fairness.
50. In the present case, the restriction would be applied
uniformly to all the practicing advocates as well as to the
C advocates who would join the profession in future and would
achieve the object of the Customs Act without leading to any
absurd results. On the contrary, its uniform application would
achieve fair results without really visiting any serious prejudice
upon the class of the advocates who were earlier the members
D of the Tribunal as it remains open to them to practice in other
tribunals, forums and courts. If an exception was carved out in
their favour, it would lead to an anomaly as well as an absurd
situation frustrating the very purpose and object of Section
129(6) of the Act.
E
51. Still in another case titled Dilip v. Mohd. Azizul Haq
& Anr. [(2000) 3 SCC 607], this Court, while dealing with the
question whether the amendment in the Rent Control Order,
which had earlier only covered· 'houses', and was amended to
F encompass 'premises' could be allowed to agreements
entered into, prior in time, clearly held that the provision came
into force when the appeal was still pending and, though the
provision is prospective in force, it has retroactive effect. This
provision merely provides for a limitation to be imposed for the
G future, which in no way affects anything done by a party in the
past and the statutes providing for new remedies or new
manners for enforcement of the existing rights will apply to future
as well as past causes of action. This Court also held that the
presumption against retrospective legislation does not
H necessarily apply to an enactment merely because a part of the
N.K. BAJPAI v. UNION OF INDIA AND ANR. 477
[SWATANTER KUMAR, J.]
requisites for its action are drawn from a time antecedent to A
its passing.
52. In light of these principles, the provisions of Section
129(6) of the Customs Act and its operation cannot be faulted
with. Another half-hearted attempt was made to raise a
B
contention that the appellants can continue to appear before
the Tribunal as they are permitted to do so in terms of Section
146A of the Customs Act, despite the provisions of Section
129(6) of the Customs Act. We are unable to find any merit in
this contention as well. The provisions of Section 129(6) of the C
Customs Act are specific and both these provisions have to
be construed harmoniously. We find nothing contradictory in
these three provisions. Section 146(2)(c) of the Customs Act
refers to the appearance by a legal practitioner who is entitled
to practice as such in accordance with law. Section 129(6)
places a restriction, which is reasonable and valid restriction, D·
as held by us above. Thus, the provisions of Section 146A of
the Act would have to be read in conjunction with and
harmoniously to Section 129(6) of the Customs Act and the
person who earns a disqualification under this provision cannot
derive any extra benefit contrary to Section 129(6) of the E
Customs Act from the reading of Section 146A of the Customs
Act. Thus, we have no hesitation in rejecting this contention as
well.
53. For the reasons afore-recorded, we dismiss all the F
aforesaid appeals, however, without any order as to costs.
K.K.T. Appeals dismissed.
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