Supreme Court of India
SMT. HEENA KAUSARversusCOMPETENT AUTHORITY
- Citation
- 2008 INSC 528
- Decided
- 24 April 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The amendment’s proviso to Section 68C does not apply to the earlier confiscation proceedings, and the earlier order remains final; the classification is reasonable and does not offend Article 14.
Summary
The wife of a man detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act was served a show‑cause notice under Chapter V‑A of the NDPS Act for alleged illegal acquisition of properties. The Appellate Tribunal ordered confiscation of the flats; the Bombay High Court dismissed that order but remitted the question of three bank accounts. While the proceedings were pending, the NDPS Act was amended in 2001 inserting a proviso to Section 68C prescribing a six‑year limitation for forfeiture actions. The appellant sought to invoke the amendment to set aside the confiscation order, arguing that the proviso was ultra‑violet of Article 14 and that the show‑cause notice was defective. The Supreme Court held that the amendment could not be applied retrospectively, that the High Court’s order was final and that the principle of constructive res judicata bars reopening the matter; the classification under the proviso was a reasonable classification and did not violate Article 14. Consequently, the appeal was dismissed with costs.
Issues considered
- The proviso inserted in Section 68C of the NDPS Act (2001 amendment) is applicable to forfeiture proceedings initiated before its insertion.
- Whether the six‑year limitation period under the proviso can be invoked to set aside the earlier confiscation order.
- Whether the proviso violates Article 14 of the Constitution as an unreasonable classification.
- The applicability of constructive res judicata to writ proceedings and the finality of the High Court’s order.
Legislation cited
Subjects
NDPS ActSection 68Cprohibition of holding illegally acquired propertyperiod of limitationArticle 14constructive res judicatapreventive detentionforfeiture of propertyclassificationeconomic aspect
Judgment
[2008] 6 S.C.R. 967
)
SMT. HEENA KAUSAR A
II.
COMPETENT AUTHORITY
(Criminal Appeal No.1058 of 2003)
APRIL 24, 2008
B
'. [S.S. SINHA AND V.S. SIRPURKAR, JJ.]
Narcotic Drugs and Psychotropic Substance Act, 1985;
Section 68, proviso to s.68C as inserted by Amendment Act
No. 9 of 2001: c
Prohibition of holding illegally acquired property -
Exception to, in terms of proviso to s. 68C as inserted by
'amendment in the Act providing for period of limitation -
Applicability of - Held: Not applicable - Order of Appellate
Authority directing confiscation of property allegedly acquired D
illegally by appellant challenged before High Court - Since
" . appellant did not raise contention about applicability of proviso
to s. 68 as amended before the Appellate Authority or High
Court, the order of High Court dismissing the petition atta1::e :
finality - Principle of Constructive Res Judicata also applies E
to writ proceedings - Not invoking of period of /imitation by
the Authorities for initiation of proceedings for forfeiture of the
properties that by itself would not be sufficient to attract wrath
of Article 14 of the Constitution -It is not a case where the
validity of the statute is in question - Moreover, Parliament
F
exclude the applicability of the period of limitation in term of
) amended provision u/s 68C of the Act - No case has been
made to invoke Article 14 of the Constitution - Constitution of
India, 1950-Article 14.
NDPS Act, 1985 -Economic aspects - Scope of - G
Discussed.
State Government of Maharasthra passed an order
of preventive detention against the husband of the
appellant under the provisions of the Prevention of Illicit
967 H
968 SUPREME COURT REPORTS [2008] 6 S.C.R.
A Traffic in Narcotic Drugs and Psychotropic Substances
Act. However, her husband had not been taken in custody
by the police/authorities. A proceeding was initiated
against her in term of Chapter V-A of the Act by serving
her a show cause notice for confiscation of the properties
B allegedly acquired by her illegally. Aggrieved the appellant
preferred an appeal before the Tribunal. The Tribunal
directed to confiscate the properties. The order was
challenged by the appellant by filing a writ petition. The
petition was dismissed by the High Court insofar as the
C order of confiscation of the properties was concerned but
in regard to the confiscation of three bank accounts, the
matter was remitted to the Tribunal for decision afresh. In
the meantime, the NDPS Act was amended. An Application
purported to be for rectification having regard to the said
amendment, was filed by the appellant before.the Tribunal,
0
praying for setting aside the order passed by it as also
the order ot the competent authority passed earlier. The
Application was dismissed by the Tribunal. Appeal
preferred thereagainst by the appellant was dismissed by
the High Court. Hence, the present appeal.
E
Appellant contended that a classification made in a
statute by way of under inclusion would not validate the
proviso to Section 68E of the NDPS Act as it stood prior
to 2001 insofar as there did not exist any valid or cogent
F reason for not providing the period of limitation of six
years in respect of a person who was charged for
commission of an offence relating to illicit traffic vis-a-vis
a person who is sought to be detained under a preventive
detention; and that the show cause notice did not contain
G any reason which was required to be recorded in terms
of Section 68E read with Section 68H of the Act.
Dismissing the appeal, the Court
HELD: 1.1 The order of the Appellate Authority was
H the subject matter of the writ petition. The contentions
SMT. HEENA KAUSAR v. COMPETENT AUTHORITY 969
raised before this Court were not raised before the said A
Authority or before the High Court. The order of the High
Court dated 15.12.1999 attained finality. [Para 9] [975-C]
1.2 The property in question stood forfeited to the
State Government. The said proceedings cannot be
permitted to be reopened. Only because in relation to the B
"
bank accounts, the matter was remanded, during
pendency whereof, the proviso appended to s.68C of
Narcotic Drugs Psychotropic Substance Act was inserted,
the same by itself, would not give rise to another cause of
action so as to enable the appellant to raise the c
contentions which he could and ought to have raised in
the earlier proceedings. The principle of 'Constructive Res
Judicata', it is trite, applies also to a writ proceeding.
[Paras 9 and 10] [975-C-F]
D
2.1 The 'Proviso' appended to Section 68C of the Act
was in the statute book since 1989. Appellant's husband
was served with an order of detention as far back as in
the year 1994. The notice under Section 680 of the Act
was issued in the year 1995. Only because at a later stage,
a period of limitation was prescribed for initiation of E
proceedings for forfeiture of the properties, the same, by
itself would not be sufficient to arrive at a conclusion that
the same attracts the wrath of Article 14 of the Constitution
of India. [Paras 11 and 12] [975-G-H; 976-A]
F
y 2.2 It is now well settled that validity of a statute can
be upheld if there exists a valid and reasonable
classification therefor, being based upon the substantial
distinction bearing a reasonable and just relation with the
object sought to be attained. [Para 13] [976-B]
G
2.3 A law may be constitutional even though it affects
an individual. There exists a presumption in favour of the
constitutionality of an enactment. The burden of proof that
the legislation is unconstitutional is upon the person who
attacks it, save and except the cases where, inter alia, H
970 SUPREME COURT REPORTS [2008] 6 S.C.R.
A arbitrariness appears on the face of the statute and the
burden of proof in regard to constitutionality of the statute
is on the State. The principle of equality would not mean
that every law must have universal application for all
persons who, by nature, attainment or circumstances, are
B in the same position. [Para 14] (976-C-D]
2.4 A law is amended by the Parliament having regard
to its experience. It is a matter of legislative policy and for
that purpose mere inequality cannot be the sole factor
for determining the constitutionality of the impugned
C provision. [Para 15] (976-E]
2.5Article 14 of the Constitution forbids classification,
it is trite, it does not forbid reasonable classification. The
classification, however, should be based on reasonable
and rational differentia and should not be arbitrary. It is
0
not a case where validity of the statute itself is in question.
Ordinarily, a statute providing for 'under inclusion' would
not be held to be attracting the wrath of Article 14.
[Paras 16, 17, 18] [976-F-H; 977-A]
E State of Gujarat & Anr. V Shri Ambika Mills Ltd.& Anr
(1974) 4 sec 656 - followed.
M.P Rural Agriculture Extension Officers Association v.
State of M. P & Anr (2004) 4 SCC 646; State of Bihar & Ors. v
Bihar State +2 Lecturers Associations & Ors. (2007) 7 SCALE
F 697; State of West Bengal v Anwar Ali Sarkar AIR 1952 SC
75; Ram Krishna Oalmia v Shri Justice S.R Tendolkar & Ors.
(1959) SCR 279 and The Superintendent and Remembrancer
of Legal Affairs, West Bengal v Girish Kumar Navalakha and
Ors. (1975) 4 sec 754 - relied on.
G
3.1 The statute deals with an economic aspect of the
matter. The purported object for which such a statute has
been enacted must be noticed in interpreting the
provisions thereof. The nexus of huge amount of money
generated by drug trafficking and the purpose for which
H
SMT. HEENA KAUSAR v. COMPETENT AUTHORITY 971
they are spent is well known. Harsh laws, not only for A
punishing the drug traffickers but also for preventive
detention, if the conditions therefor are satisfied, were
made. Necessity was felt for introduction of strict
measures so that money earned from the drug trafficking
by the persons concerned may not continue to be B
.... invested, inter alia, by purchasing moveable or
immoveable properties not only in his own name but also
in the names of his near relatives. [Para 19] [979-E-G]
3.2 The case in hand itself throws sufficient light as
to why the Parliament thought it fit to exclude the C
applicability of the provisions of the period of limitation in
the matter of initiation of proceedings for forfeiture of
properties. [Para 19] [979-H; 980-A]
3.3 A person might have committed only one time
0
offence, another not only may be an offender but also
might have been indulging in drug trafficking for a long
time. Whereas in the former an order of preventive
detention may not be necessary, in case of the latter, it
may be found to be necessary. The distinction although
appears to be fine, but real. [Para 20] [980-B-C] E
In Re: The Special Courts Bill, 1978 (1979) 1 SCC 380
- referred to.
4. In view of the settled legal position no case has
been made out to invoke Article 14 of the Constitution of F
India so as to hold that the proviso to s.68C of the Act as
amended in the year 2001 shall also apply to the present
category of cases. [Para 22] [982-E-F]
State of Gujarat & Anr v. Shri Ambika Mills Ltd. & Anr G
(1974) 4 sec 656 - referred to.
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No.1058 of 2003.
From the final Judgment and Order dated 27.11.2002 of H
972 SUPREME COURT REPORTS (2008] 6 S.C.R.
A the High Court of Judicature at Bombay in Criminal Writ Petition
No. 1283 of 2002.
Raju Ramachandran, G.S. Pikale, E.C. Agrawala, Rishi
Agrawala, Amit Sharma and Saurabh S. Sinha for the Appellant.
B Sushma Suri for the Respondent. ..
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Validity of the proviso appended to
Section 68C of the Narcotic Drugs and Psychotropic
c Substances Act, 1985 (NDPS Act) is in question in this appeal
which arises out of a judgment and order dated 27.11.2002
passed by a Division Bench of the High Court of Judicature at
Bombay.
2. The basic fact of the matter is not in dispute.
D
3. Appellant herein is wife of one Iqbal Mohammed ,,
Memon. An order of detention was passed against him under
the provisions of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act, 1988 (PINDPS Act) by the
State of Marharashtra. Allegedly, both the appellant and her
E husband left India in or about the year 1991. Appellant has not
yet come back to India. Her husband admittedly had not been
taken incustody pursuant to the order of detention. Admittedly
again, Appellant has several properties in her name. A
proceeding was initiated against her in terms of Chapter V-A of
F the Act, wherefor, she was served with a show cause notice
dated 9.5.1995 asking her to furnish the proof and/or source of
income and/or the channels from which the assets being Flat
Nos.501 and 502A along with stilt parking No.19 in Milton
Apartments at Juhu Tara Road, Santacruz {W) had been
G acquired as also to show cause why the said properties should
not be held to be "illegally acquired properties" and forfeited by
the Central Government under the Act.
4. An appeal thereagainst was preferred before the
Appellate Tribunal. By an order dated 10.2.1999, the properties
H
SMT. HEENA KAUSAR v. COMPETENT AUTHORITY 973
[S.B. SINHA, J.]
were directed to be confiscated. A·
"
A writ petition was filed by her before the Bombay High
Court which was marked as Writ Petition No.1867of1999. The
said writ petition was dismissed by a judgment and order dated
15.12.1999 insofar as the order of confiscation of flat No.501
'· and 502 and stilt parking in Milton Apartments were concerned. 8
However, in regard to the confiscation of three bank accounts,
the matter was remitted to the Appellate Tribunal for its decision.
5. Proviso appended to Section 68-C prior to its
amendment stood as follows : c
"Provided that no property shall be forfeited under this
Chapter, if such property was.acquired by a person to
· whom this Act applies before a period of six years from
the date on which he was charged for an offence relating
to illicit traffic." D
Section 68-C, after the amendment, reads as under :
"Section SSC - Prohibition of holding illegally acquired
property-(1) As from the commencement of this
Chapter, it shall not be lawful for any person to whom this E
Chapter applies to hold any illegally acquired property
either by himself or through any other person on his behalf.
(2) Where any person holds any illegally acquired property
in contravention of the provisions of sub-section (1 ), such
property shall be liable to be forfeited to the Central F
Government in accordance with the provisions of this
Chapter:
Provided that no property shall be forfeited under this
Chapter if such property was acquired, by a person to G
whom this Act applies, before a period of six years from
the date he was arrested or against whom a warrant or
authorisation of arrest has been issued for the commission
of an offence punishable under this Act or from the date
the order or detention was issued, as the case may be." H
974 SUPREME COURT REPORTS (2008] 6 S.C.R.
A Indisputably, the Act was amended by Act No.9 of 2001
with effect from 2.10.2001.
6. An application purported to be for rectification having
regard to the said amendment, was filed by the appellant before
the Appellate Tribunal, inter alia, praying therein for setting aside
B its order dated 15.2.1999 as also the order of the competent .'
authority dated 20.10.1997.
7. In the said purported application for rectification, the
appellant raised the following contentions :
c 1. That prior to coming into force of the said Act, the
Competent Authority had no jurisdiction to initiate
any proceeding under the said Act against a citizen
of India who had been residing out of the country.
2. That the proviso, as it stood prior to amendment,
D
was ultra vires Article 14 of the Constitution of India.
The said application was dismissed by the Appellate
Tribunal by an order dated 20.6.2002. A writ petition was filed
theragainst before the Bombay High Court which was marked
E as writ petition No.1283 of 2002.
By reason of the impugned judgment, the said writ petition
has been dismissed.
8. Mr. Raju Ramachandran, learned senior counsel
F appearing on behalf of the appellant, at the outset, did not press
the first contention raised before the Appellate Authority as also
before the High Court.
The learned counsel, however, would submit that a
classification made in a statute by way of under inclusion would
G not validate the proviso to Section 68E of the Act as it stood
prior to 2001 insofar as there did not exist any valid or cogent
reason for not providing the period of limitation of six years in
respect of a person who was charged for commission of an
offence relating to illicit traffic vis-a-vis a person who is sought
H
SMT.1-iEENA KAUSAR v. COMPETENT AUTHORITY 975
[S.8. SINHA, J.]
I
to be detained under a preventive detention. A
9. The learned counsel would subrnitthat the show cause
notice did not contain any reason which was required to be
recorded in terms of Section 68E read with Section 68H of the
NDPS Act, and, thus, the Impugned judgment cannot be
sustained. B
Admittedly, the order of the Appellate Authority was the
subject matter of the writ petition. The contentions raised herein . ·
were not raised before the said Authority or before the High
Court .. The order of the High Court dated 15.12.1999 attained c
finality.
The flats in question stood forfeited to the State
Government. The said proceedings cannot be permitted to be
reope11ed.
D
10. Only because in relation to the bank accounts; the
......
matter was remanded, during pendency whereof, the proviso
appehded to Section 68C was inserted, the same by itself, in
our opinion, would not give rise to another cause of action so
as to enable ttie appellant to raise the contentions which. he
could and ought to have raised in the earlier proceedings. E
The principle of 'Constructive Res Judicata', it is trite,
applies also to a writ proceeding. Furthermore, admittedly such
a .contention has not been raised even in the second writ
application. The documents which were necessary to be taken F
into consideration for determining the saic! question are also
not before us. We, therefore, 'are---Qf the opinion that it is not
. possible for us to go into the said question. ··
·11. The. 'Pro~iso'· appended to Section 68C\·w~s ln th~ "'
statute book since 1989. Appellant's husband was served with G
an order of.detention as far back as in the year 1994. The notice
under Section 680 of the Act wcjs issued in the year 1995.
. . .
12. Only because at a later stage, a period oflimitation
was prescribed for initiation of proceedings for forfeiture of the H
976 SUPREME COURT REPORTS [2008] 6 S.C.R.
I.
A properties, the same, in our opinion, by itself would not be
sufficient to arrive at a conclusion that the same attracts the
wrath of Article 14 of the Constitution of India.
13. It is now well settled that validity of a statute can be
8
upheld if there exists a valid and reasonable classification
therefor, being based upon the substantial distinction bearing a
reasonable and just relation with the object sought to be attained.
..
14. In this regard, we may notice some well settled legal
principles. A law may be constitutional even though it affects an
c individual. There exists a presumption in favour of the
constitutionality of an enactment. The bur~en of proof that the
legislation is unconstitutional is upon the person who attacks it,
save and except the cases where, inter alia, arbitrariness
appears on the face of the statute and the burden of proof in
D regard to constitutionality of the statute is on the State. The
principle of equality would not mean that every law must have
universal application for all persons who, by nature, attainment
or circumstances, are in the same position.
15. A law is amended by the Parliament having regard to
E Its experience. It is a matter of legislative policy and for that
purpose mere inequality cannot be the sole factor for
determining the constitutionality of the impugned provision.
16. Whereas Article 14 forbids classification, it is trite, it
does not forbid reasonable classification. {See M.P Rural
F Agriculture Extension Officers Association v State of M.P &
Anr. [(2004) 4 SCC 646]; and State of Bihar & Ors. v Bihar
State +2 Lecturers Associations & Ors. [(2007) 7 SCALE 697]}.
17. This court in State of West Bengal v Anwar Ali Sarkar
G (AIR 1952 SC 75] as also Ram Krishna Dalmia v Shri Justice
S. R. Tendolkar & Ors. [1959 SCR 279], categorically laid down
the twin test of classification. The classification, however, should
be based on reasonable and rational differentia and should not
be arbitrary.
H
SMT. HEENA KAUSAR v. COMPETENT AUTHORITY 977
_,' [S.B. SINHA, J.]
18. It is not a case where validity of the statute itself is in A
question .. Ordinarily, a statute providing for 'under inclusion' would
not be held to be attracting the wrath of Article 14. A Constitution
Bench of this Court held so in State of Gujarat & Anr. v. Shri
Ambika Mills Ltd. & Anr. [(1974) 4 SCC 656], in the following
.... words: B
"54. 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 c
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. D
55. 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 E
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 F
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 G
one of them would some day bring about his downfall
employed such a classification.
56. The first question, therefore, is, whether the exclusion
of establishments carrying on business or trade and
H
978 SUPREME COURT REPORTS [2008] 6 S. C.R.
A 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
B
accumulations 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 unreasonable. But the
Court has recognised the very real difficulties under which
legislatures operate - difficulties arising out of both the
c nature 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
D
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. What, then, are the fair reasons for
non-extension? What should a court do when it is faced
E 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?"
F The said ratio was followed by this Court in The
Superintendent and Remembrancer of Legal Affairs, West
Bengal v. Girish Kumar Navalakha and Ors. [(1975) 4 SCC
754, holding:
"8. Oftentimes the courts hold that under-inclusion does
G not deny the equal protection of laws under Article 14. In
strict theory, this involves an abandonment of the principle
that classification must include all who are similarly situated
with respect to the purpose. This under-inclusion is often
explained by saying that the legislature is free to remedy
H parts of a mischief or to recognize degrees of evil and
SMT. HEENA KAUSAR v. COMPETENT AUTHORITY 979
[S.B. SINHA, J.)
strike at the harm where it thinks it most acute." A
It was furthermore held :
"10. There are two main considerations to justify an under-
. ' · · i'nCLusive classification. First, administrative necessity.
.. Second: 'the legislature might not be fully convinced that B
the particular policy which it adopts will be fully successful
or wise. Thus to demand application of the policy_to all
whom it might logically encompass would restrict the
opportunity of a State to make experiment. These
techniques would show that some sacrifice of absolute c
equality may be required in order that the legal system
may preserve the flexibility to evolve new solutions to social
and economic problems. The gradual and piecemeal
change is often regarded as desirable and legitimate
though in principle it is achieved at the cost of some
0
equality It would seem that in fiscal and regulatory matters
the court not only entertains a greater presumption of
coristitutionality but also places the burden on the party
challenging its validity to show that it has no reasonable
basis for making the classification."
E
19. The statute deals with an economic aspect of the
matter. The purported object for which such a statute has been
enacted must be noticed in interpreting the provisions thereof.
The nexus of huge amount of money generated by drug
trafficking and the purpose for which they are spent is well F
known. Harsh laws, not only for punishing the drug traffickers
but also for preventive detention, if the conditions therefor are
satisfied, were made. Necessity was felt for introduction of strict
measures so that money earned from the drug trafficking by the
persons concerned may not continue to be invested, inter alia, G
by purchasing moveable or immoveable properties not only in
his own name but also in the names of his near relatives.
This case, itself throws sufficient light as to why the
Parliament thought it fit to exclude the applicability of the
provisions of the period of limitation in the matter of initiation of H
980 SUPREME COURT REPORTS [2008) 6 S.C.R.
A proceedings for forfeiture of properties. \_
20. The Union of India and the State of Maharashtra have
not been able to serve even the order of detention upon the
husband of the appellant. There may be a large number of other
cases of that nature.
B
A person might have committed only one time offence, ..
another not only may be an offender but also might have been
indulging in drug trafficking for a long time. Whereas in the former
an order of preventive detention may not be necessary, in case
c of the latter, it may be found to be necessary. The distinction
although appears to be fine, but real.
21. This Court in Re : The Special Courts Bill, 1978
[(1979) 1 sec 380, held that the offences which were
emergency related form a class of offences, stating :
D
"72. As long back as in 1960, it was said by this Court in
Kangsari Haldarthat the propositions applicable to cases .1
arising under Article 14 "have been repeated so many
times during the past few years that they now sound almost
platitudinous". What was considered to be platitudinous
E
some 18 years ago has, in the natural course of events,
become even more platitudinous today, especially in view
of the avalanche of cases which have flooded this Court.
Many a learned Judge of this Court has said that it is not
in the formulation of principles under Article 14 but in their
F application to concrete cases that difficulties generally
arise. But, considering that we are sitting in a larger Bench
than some which decided similar cases under Article 14,
and in view of the peculiar importance of the questions
arising in this reference, though the questions themselves
G are not without a precedent, we propose, though
undoubtedly at the cost of some repetition, to state the
propositions which emerge from the judgments of this
Court insofar as they are relevant to the decisio:-1 of the
points which arise for ou; consideration. Those
H propositions may be stated thus:
SMT. HEENA KAUSAR v. COMPETENT AUTHORITY 981
[S.B. SINHA, J.]
The Court noticed as many as thirteen propositions, some A
of which are:
"(2) The State, in the exercise of its governmental power,
has of necessity to make laws operating differently
... on different groups or classes of persons within its
territory to attain particular ends in giving effect to its B
policies, and it must possess for that purpose large
powers of distinguishing and classifying persons or
things to be subjected to such laws.
(3) The constitutional command to the State to afford c
equal protection of its laws sets a goal not attainable
by the invention and application of a precise formula.
Therefore, classification need not be constituted by
an exact or scientific exclusion or inclusion of persons
or things. The courts should not insist on delusive
D
exactness or apply doctrinaire tests for determining
the validity of classification in any given case.
Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14
is not that the same rules of law should be applicable E
to all persons within the Indian territory or that the
same remedies should be made available to them
irrespective of differences of circumstances. It only
means that all persons similarly circumstanced shall
be treated alike both in privileges conferred and F
)
liabilities imposed. Equal laws would have to be
applied to all in the same situation, and there should
be no discrimination between one person and
another if as regards the subject-matter of the
legislation their position is substantially the same.
G
(5) By the process of classification, the State has the
power of determining who should be regarded as a
class for purposes of legislation and in relation to a
law enacted on a particular subject. This power, no
doubt, in some degree is likely to produce some H
982 SUPREME COURT REPORTS (2008] 6 S.C.R.
A inequality; but if a law deals with the liberties of a
number of well defined classes, it is not open to the
charge of denial of equal protection on the ground
that it has no application to other persons.
Classification thus means segregation in classes
8 which have a systematic relation, usually found in . ~
common properties and characteristics. It postulates
a rational basis and does not mean herding together
of certain persons and classes arbitrarily.
xxx xxx xxx
c
(11) Classification necessarily implies the making of a
distinction or discrimination between persons
classified and those who are not members of that
~lass. It is the essence of a classification that upon
the class are cast duties and burdens different from
D
those resting upon the general public. Indeed, the
very idea of classification is that of inequality, so that
it goes without saying that the mere fact of inequality
in no manner determines the matter of
constitutionality."
E
22. In view of the settled legal position as noticed above,
we are of the opinion that no case has been made out for us to
invoke Article 14 of the Constitution of India so as to hold that
the proviso amended in the year 2001 shall also apply to the
F present category of cases. Accordingly, the appeal is dismissed
with costs. Counsel's fee assessed to Rs.50,000/- (Rupees fifty
thousand only)
S.K.S. Appeal dismissed.
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