THE STATE OF GUJARAT AND ANOTHER versus SHRI AMBICA MILLS LTD., AHMEDABAD, ETC.

THE STATE OF GUJARAT AND ANOTHER

SHRI AMBICA MILLS LTD., AHMEDABAD, ETC.

March 26, 1974

[A. N. RAY, C.J., H. R. KHANNA.t K. K. MAmEW, Y. V. CHANDRACHUD AND A. ALAGIRISWAMI, JJ.]

Consritution of India, 1950, Art. 13-Legislation void in relalion to citi· ~c11s as violating Art. 19-Jf corporation, non-citizen, can contend that Jaw u 11011-e:St.

Bombay Labour Welfare Fund .Act, 1953, liS amended by Guiarat Amend-mmt Act, 1961 s. 2(4)-'Establishmellt' d!!jirlition of-if violates Art, 14.

After the State of Bombay was bifurcated the legislature of the State of Gujarat enact~d the Bombay Labour Welfare Fund (Gujarat Extension and Am~ndment) Act, 1961, mak:ing various amendments in the Bombay Labour Welfare Fund Act, 1953. The 1953-Act was passed with view t\) provide for the constitution of a· fund for financing activities for promoting the wel· fare of labour in the State of Bombay. Section 3 as amended, provides that the State Government shall constitute fund called the Labour Welfare Fund and that the. f;md shall consist of. among other things, all unpaid accumula-tions. Sec. 2 (1 0} defines unpaid accumulations as meaning all payments due to the employees but not made to them within period of three years from the date on which they became due whether before or after the commence-m~nt of the Act including wages and gratuity legally payable. Sec. 6A(l) provides that \1Dpaid accumulations shall be deemed to· be abandoned property anti that the Board, constituted under the Act, shall take them over. As soon :1s the Board takes over the unpaid accumulations, notice as provided in the section, will haw to be published and claims invited. Sub-section 3 to 6 pro-vide for notice and sub-ss. 7 to 11 lay down the machinery for adjudication of t:l:lims which might be received in response to the notice. It is only if no clnim is made for veriod of four years from the date of the publication of the first no tic~. or if claim is made but rejected wholly or in part, that the St:He approp1 i:aes the unpaid accumulation, as borra mea/Ilia.

Section :!(4) of the Act defines 'establishment' and the definition includes f:1ctories, tramway or motor omnibus services and any establishment carrying on business or 'trade and employing more than SO persons; but excludes nil government establishments carrying on business or trade. De1r.and for the parment of the unpaid accumulations having been made the respondents filet! p~titions in th~ High Court challenging various provisions of the Act and the High Court held that s. 3(1). in so tar as it relates to unpaid accumulations specified in s. 3 (:!) (b), 3 ( 4) and 6A of the Act, and rules 3 and 4 of the ral~s made ther~under nre unconstitutional and void on the grounds : (i) that the impugned provisions violated the fundamental rights of citizen-employers nnd employees under Art. 19(1)(0 and therefore were voi~ under Art. 13(~} :-tnd hence ti1er~ \\':IS no law and the demands were thus wtthout the :mthonty of bw; and l~) that discrimination was writ large in the definition of 'estab-l i,;hment'.

Allowing the nppeal to this Court,

HELD : ( 1 )(a) Unpaid accumulations represent the obligations or the employers to the employees and they are the property of the employe~s. In o:hc-r words, what is being treated as abandoned property. u~der fiA ts the C't,ligation to the employees owed by the employers and Y!htch IS property from the standpoint of the emplo)·ees. [771A-BJ

(b) At common law, abandoned personal property could not be tho subject of escheat. It could only be appropriated as bona vacantia. Under the Act, though unpnid accumulations are deemed to be abandoned. property under s. 6A(l) they are appropriated as bona vacantia only after claims are invited and disposed of, l770G.711A]

(c) lf unpaid accumulations are not claimed within total period of 7 years the inactivity on the part of the employees would furnish adequate basis. for the administration by the State of the unasserted claims or demands. It cannot be said that the period of 7 years allowed to the employees for the purpose cf claiming unpaid accumulations is an unreasonably short one which will result in the infringement of any constitutional rights of the employees. [771EJ

(d) There is no reason to think that the State will be, in fact less able or less willing to pay the amounts when it has taken them over. [771E.F]

(e) lt. cannot also be assumed that the mere substitution of the State as: the debtor will deprive the employees of their property or impose on them any unconstitutional burden. [771F]

(f) Since the employers are the debtors of the employees, they can inter-· pose no objection if the State is lawfully entitled to demand the payment, for in that case payment of the debt to the State under the statute reteases the employers of their liability to the .employees. When the moneys representing Lhe unpaid accumulations are paid to the Board the liability of the employers to mlke payment to the employees in respect of their claims against the em- . ployers w1>uld be discharged to the extent of the amount paid to the_ Board, and on such liability being transferred to the Board, the debts or claims to that extent cannot thereafter be enfoi;_ced against the employers. [7710, G]

(g) As regards notice, all persons having property located within state and subject to its dominion must take. note. of its statutes affecting control and disposition of such property and the procedure prescribed for those purposes. The various modes of notice prescribed in s. 6A are sufficient to give reaso~­E nblc information to the employees to come forward and claim the amount 1f they .really want to do so. [7710-Hl

In the absence of showing of injury, actual or threatened, there could be no constitlllional argument, therefore, against the taking over of the unpaid accumulations by the State. [771F.G]

(2) But assumin~ that the impugned provisions abridge the fundamental rights of citizen-employers or citizen-employees under Art. 19(1) (f) the res· pendent, corporation and hence non-e<itizen employer, could not claim (i) that the taw was void as a~ainst non.citizen employers also under Art. 13 (2), and (ii) that since void law is nullity, the privation of its property was without the authority pf law. [7720)

(a} It is settled that Corporation is not citizen for the purposes of Art. 19 and has, therefore no fundamental right under that Article. [772E]

Tata Ertf!illefl'illf? and !oconiolive Co. Ltd. v. State of Bihar and orhers. [19641 6 S.C. R. 885, R. C. Cooper v. Unio11 of India, [1970] 2 S.C.R. 530 and Bermcrt Cofeman & Co., etc. v. Unio11 of India and Otlrers [1972] 2 S.C.C. 788, followed.

(b) Courts shculd not adjudse on the constitutionality of statute except when they are called upon to do so when legal rights of the Jltigants are in actual controversy; and as part of this rule, is the principle that one to whom the application of R statute is constitutional will not be heard to attack the statute on the ground that, it must al110 be taken as applying to other persons to whom or sitt,Jations in which, its ·application may be unconstitutional. [77JH-772B]

United States v. Rainas, 362 U.S. 17, referred to.

(c) The same ~ch~me permeates both the sub-articles of .Art. 13, namely, to make the law VOid m Art. 13 (I ) to the extent of the inconsistency with the fundamental rights, and in Art ·13 (2) to the extent of the contra\·ention of those rights. In other words, the voidness is not in rem but to the extent only of inconsistency or contravention as the case may be, of the rights conferred under Part llL Therefore when Art. 13(2) uses the expression 'void' it can only mean void as against persons whose fundamental rights are taken away or abridged by law. [777G-H] ·

(d) If pre-constitutional Jaw which takes away or abridges the rights under Art. 19 could remain operative even after the Constitution came into force as regards non-citizens, there is no reason why post-constitutional Jaw which takes away or abridges them should not be operative as respects non-citizens, if the meaning of the word 'void' in Art. 13(1) is the same as its meaning in Art. 13(2). The reason why pre-constitutional law remains operative as against non-citizens is that it is void· only to the extent of its in-·consistency with the rights conferred under Art. 19 and that its voidness is, therefore, confined to citizens, as, ex hypot/Jrsi the Jaw became in:onsistent with their fundamental rights alone. Art. 13(2) is an injunction to th: State not to pass any law which takes away or <lbridges the fundamental ri~hts con-fened by Part III and the consequence of the contravention of the injunction is that" the Jaw would be void to the extent of the contravention. The expres-sion 'to the extent of the contravention' in the sub-article can only mean to the extent of th~ contravention of the rights conferred under that Pa~t. Rights always inhere in some person whether natural or juridical. Just a3 pre--constitutional Jaw taking away or abridging the fundamental rights under Art. 19 remains operative after the Constitution came into force as respects of non-citizens as it is not inconsistent that their fundamental rights so also post-constitutional Jaw, offending Art. 19. remains operative as against non-citizens as it is not in contravention of any of their fundamental rights. The hw might be still-born so far as the persons, entities or denominations whose fundamen-tal rights are taken away or abridged; but there is no reason why the law should be void or stiH-born ~s against those who have no· fundamental rights. [777B-D, E-G, H-778A]

(e) It could not be said that the expression 'to the extent of tl:e contra-vention' mean only that part of the law which contravenes the fundamental right would alone be void and not the other parts which do not so cc-ntravene. The expression 'any law' occurring in the .latter part of the sub-article ,must necessarily refer to the same expression in the former part and, therefore, the ·Constitution-makers have already made it clear that the Jaw that would be void is only the law which contravenes the fundamental rights conferr~d by Part JTI; and, so, the phrase 'lo the extent of the contravention' can mean only to the extent of the contravention of the rights coof~rred. When it is s~en that the I alter part of the sub-article is concerned with the effect of the violation of the iniunction contained in the former part. the words 'to the extent of the contravention' can only refer to the rights conferred under Part III r.nd denote only the com!Jass of voidness with respect to persons or entities resu',dng from the contravention of the rights conferred upon them. There is no rea~c.n wh~· the Constilntion-maker~ wanted to state that th"e other sections which did not violate the fundamental right~ wonld not be void_ Be~ides. any such categori-cal statement would be wrong as the other sections niil!ht be void if !hey are inseparably knitted to the void one. [778A-G](f) Assuming that this Court has rejected the distinction bet;'·ee~ legisla-·tive incapacitv arising from lack of power under the relevant le~!ISJa:,ve e~try and that ari•ing from check upon lesrislative power on account of constttu-tional nrovisions like fund~mental rights, it does not follow that if the ht\1-cn<Jcted bv the legislature having no capacity in the former sense \\-ould be void in rem law passed by legislature having no Je~is\ative cap~~it" in th~ lalter sense should also be void in rem, because : f778G-H]

(i) Tf on textual reading of Art. 13 the conclusion. reached nam~IY. that :a law passed by legislature having no legislative capac1ty in th~ lr:::er sense

~~ ~nly ''~id qua those persons whose fundamental rights are taken away or· abndged, IS the only reasonable one, there is no need to consider whether that concll!~ion could not be arrived at except on the basis of such distinction; and {n) Further, there is nothing strange in the notion of legislature having no inherent legislative capacity or power to take away or abridge by law the fundamental rights conferred on citizens and yet having legislative power to pass the same law in respect of non-eitizens who have no such fundamental rights to be taken away or abridged. In other words, 1he le_gislative incapacity subjectw:se with reference to Arts. 245 and 246 in. this context would be the taking away or abridging by law the fundamental rights under Art. 19 of citizens. [779A-E]

M. P. V. Smu/araramaier v. State of A.P. (1958) S.C.R. 1422, referred to.

(g) Th~ expression "that State shall not make any law" in Art. 13 (2) is no doubt clear mandate of the fundamental law of the land and, therefore, it is case of total incapacity and total want of power. But the mandate is tbat !-he State shall not make any law which takes aw~y or abridges the rights conferred by Part Ill. If no rights are conferr~d under Part TII upon person, or, if rights are conferred, but they are not taken away or abridged by Jaw ther~ could not be incapacity of the legislature to make law. If law is otherwise good and 'does not contravene any of their fundamental rights, non-citizens cannot ~ake · advantage of the voidness of the law for the reason. that it contravenes the fundamental rights of citizens and claim that there is no law at rill. Such proposition would not violate any principle of equality before the Jaw, because, citizeqs and non-citizens are not similarly situated as citizem have certain fundamental rights which non-citizens have not. ·[779 B-D: 780 D-EJ

Kesh:.;1·a Madha~'P Menon v. Stale of Bombay, [1951] S.C.R. 228, Bahran Khurslu·d Pt>sikake v. State of Bo1nbav, £19551 1 S.C.R. 613. Bhikft(l/i Narain Uhakras v. Stale 0/ M.P. [1955] 2 S.'C.R . 589, M. P. V. SwrdararaiTI(Jier v. 'Stale of A..P., [19j8] S .C .R . 1422. Deep Char.-1 v. State -of U.P. and Others, [1959] Supp. 2 S.C.R . 8, Mahendra l.tll Jaini's case [1963] Supp. I S.C.R. 912 and lu~:awrath v. Autlrori~ed Officer, Ltmd Reforms, [19711 2 S.C.C. 893, referred lo.

(h) .Therefore, even assuming that under Art. 226 of the Constitution t~e · respondent was entitled to move the High Court and seek remedy for In-fringement of its ordinary right to property, the impugned provisions could not be treated as uon-esr. and the respondent cannot take the plea that his rights to property are being taken away or abridged without the authority of !aw. [7n H-773 A] S.

(3) The definition of 'establishment' in S. 2(4) does not violate Art. 14 and does not make the impugned provisions void.

(a) The equal protection of the l aws is piedge of the protection of equal taws. But courts have resolved the contradictory demands of legislative specia-lisation and constitutional generality by the ·doctrine of reasonable classifica-tion. (782 B·Gl

(bl reas.onable classification is one which includes all who are similarly situated, and none ·who are not, with respect to the purpose of the law [782 C-D]

(c) cl as.~ification is under·inclusive when all wno are included in the class are tainted with the mischief, but there are others also tainted wbooi the cla~sification does not include>. classification is over-inclusive when it includes not only those who arc similarly situated with respect to the purpose but also others who are not so situated. [782 D-FJ (d) The Court has recognised the very real difficulties under which legislatures operate difficulties ari~inJr out of both the nature of the le~islative pr('(:C~~ aild of the societv which legislation attempt..~ nerenniallv to rPShape and it has reCused to strike down indiscriminately all legislation embodying-

classificatory inequality like the one here under consideration. The legislature cannot be required to impose upon administrative agendes tasks which cannot be carried out or which must be carried out on large scale at single stroke. The piecemeal approach to general problem permitted by under-inclusive classifications is JUstified especially when it is conscdered that legisl::ttion dealing with such problem5 is usually an experimental matter. It is impossible to tell how successful particular approach may be, what dislocation may occur, what evasions may develop or what new evils. might be generated in the attempt. legislation may take one step at time addressing itself to the phase of the probl~m which seems most acute to the legislative mind. Therefore, legislature might select only one phase of one field for application of reml!dy. Once: an objective is decided to be within the legislative competence the working out of classification should not be impeded by judicial negatives. The courts attitude cannot be that the state either has to regulate nll busines~es or even all rel::tted businesses and in the same way, or not at all. The court must b:! fiWare of its own remoteness and lack of familiarity with the local problems. Cla5Sification is dependent on the particular needs and specific difficulties of the community which are beyond the easy ken of the court, and which the legislature alone wa~ competent to make. Consequently, lacking the capacity to inform itself fuliy about the peculiarities of J>articular local situation, C()Urt should hesitate to dub the legislative classification as irrational. [782 H-783 G; 784 A-D; 786 G-H; 787 A)

Missouri, K&T, Rly. v. M.-ry, [1904] 194 U.S. 267, 269, West ChM Hotrl

Company v. Parrish, 300 U.S. 379, 400, Two Guys from HarriSOI1·Allentowll v. Me Ginley 366, U.S. 582, 592, Mutual Loan Co. v. Martell, 56 LEd. 175, 180, Tianer v. Texas 310 U.S. 141 and Carmiclrel v. Soutltem Coal & Coke .co., 201. U.S. 495, referred to, (e) The question whether, under Art. 14, classification is reasonable or unreasonable mu.st, in the ultimate analysis depend upon the judicial approach to the problem. The more complicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities. In the utilities, tax and economic regulation cases, there are good I"casons for judicial self-restraint if not official deference to legislative judgment. The Courts have only the power to destroy but not to ree()nstruct. When to this are added the complexity of economic reg·ula!ion, the uncert::tinty, the liability to error, the bewildering conflict of th.e cx!)erts, and the number of times the judges bave been overruled by events self limitation can be seen to be the path t~ judicial wisdom and institutional prestige and stability. [784 F-785 D)(f) Laws regulating economic activity should be viewed differently from Jaws which touch and concern freedom of speech and religion, voting pro-creation, rights with respect to criminal procedure etc. Judicial dl!fetence to legislature in instances of economic regulation is explained by th~ argument that rationality of classification depends upon local conditions ai>out which local legislative or administrative bodies would be better informed th=:n wort. [784 D-E; 786 A]

differently from voting pro-

(g) Tn the present case, the purpose of the Act is to g~t unpaiJ accumu-lations for utilising them for the welfare of labour in general. is from the factories that the greatest amount of unpaid accumulations could be collected and since the factories are bound to maintain records from which the amount of unpaid accumulations could be easily· ascertained the legislature t-rought all the factories within the definition of 'establishment'. It then addressed itself to other establishments but thought that establishments employing less than 50 per-sons need not be brought within the purview of the definition as unpaid accumu-lations in those establishments would be tess and might not be sufficient to med the administrative expenses of collection and as many of them might not be maintaining records from which the amount of unpaid accumulations could be ascertained. Admini~rative convenience in the collection of unpaid accumula-tions is a. factor to be taken into account in adjudging whether the classification is reasonable. The reason why government establishments other than factories were not included in the definition is that there are hardly any establishments run by the Central or State Government. [783 F·G: 785 E-H; 786 A-B) (h) The justification for including tramways and motor omnibuses within the purview of the definition is that the legislature of the State of Bombay, when it

enacted the Act in 1953, must have had reason to think that unp:lid accumula-tions in these concerns would be large, b:cause, they usually employed large amount of labour force, and they were bound to keep records of the wages earned and paid. [786 C-D] ·

(i) Whether court can remove the unreasonablenss of cl:lssilication when it is under-inclusive by extending the ambit of the legislation to cover the class omitted to be included, or by applyins the doctrine of severability delete clause which makes classification over-inclusive, are matters on which it is not necessary to express any final opinion because the inclusion of tramway or motor omnibus service in the definition of 'establishment' does not make the classifica-tion unrearonab)e having regard to the purpose of the legislation. [788 A-C)

CIVIL APPELLATE JURISDZCTIOX: Civil Appeals Nos. 1931 to 1933/68.

From the Judgment and Order dated the 19thj20thj2lst day of July 1965 of the Gujarat High Court at Ahmedabad in Special Civil Application Nos. 579 to 581 of 1963.

Civil Appeal No. 2271 of 1968.

From the judgment and order dated the 19th/20th/21st day of July 1965, of the Gujarat High Court at Ahmedabad in Special Civil Appli-cation No. 836 of 1962.

Civil Appeals Nos. 492 to 512 of 1969.

From the Judgment and order dated the 21st July; 1965 of the Gujarat High Court at Ahmedabad in Special Civil Application Nos. 1069/62, 20, 21, 40, 49, 476, 699, 574 of 1963, 1070 to 1075 of 1962, 1086 to 1089 of 1962, 516, 727 and 728 of 1963.

Civil Appeals Nos. 1114 to 1129 of 1969.

\From the judgment and order dated the 21st July, 1965 of the Gujarat High Court in Special Civil Applications Nos. 458 to 473 of E. 1963.

S. T. Desai, S. K. Dholakia and S. P. Nayar, for the appellants. (In all the appeals).

V. B. Patel, D. N. Misra, J. B. Dadacllanji, 0. C. Mathur and Ravinder Narain, for respondent no. 1 (in C. As. 1115, 1118, 1125/ -69).

Ram Punjwani, P. C. Bhartari, J. B. Dada&hanji, 0. C. Mathur and Ravinder Narain, for respondent no. 1 (in C.-A. 1931/68).

P. C. Bhartari, J. B. Dadacllanji, 0. C. Mathur and Ravinder Narain, respondent no. 1 (in C. As. 1931-33/68, 49~·494, 497, 499, 500-502, 504-507, 511-512j69, 1117; 1122, 1124 and 1126-27/69). M. C. Setalvad, V. B. Patel and I. N. Shroff, for respondent no. 1 (in C.A. 2271/68). V. B. Patel and I. N. C.As.

V. B. Patel and I. N. Shroff, for respondent no. 1 (In C.As. 1114, 1116, 1119 and 1128j69).

M. C. Bhandare and M. N. Shroff, for intervener.

The Judgment of the Court was delivered by

MATHEW, I.-The facts are similar in all.these cases. We prop9se to deal with Civil Appeal No. 2271 of 1968. The decisii.m. ~le ~:..:!l. dispose of the other appeals.

The first respondent, company registered under the Companies Act, filed Writ petition in the High Court of· Gujarat. In that

petition it impugned the provisions of sections 3, 6A and 7 of the Bombay Labour Welfare Fund Act, 1953 (hereinafter referred to as the Act) and s: 13 of the Bombay Labour Welfare Fund (Gujarat Ext·:msion and Amendment) Act, 1961 (hereinafter referred to as the First Amendment Act) and rules 3 and 4 of the Bombay Labour Wel-fare Fund Rules, 1953 (hereinafter referred to as the Rules) as uncon-stitutional and prayed for the issue of writ in the nature of mandamus or other arpropriate writ or direction against the respondents in the writ petition to desist from enforcing the direction in the notice dated August 2, 1962 of respondent No. 3 to the writ petition requiring the petitioner-1 si respondent to pay the unpaid accumulations specified therein.

The High Court held that s. 3 (1) of the Act in so far as it relates to unpaid accumulations specified in s. 3 (2) (b), s. 3 ( 4) and s. 6A of the Act and rules 3 and 4 of the Rules was unconstitutional and void.

In order to appreciate the controversy, it is necessary to state the backgrom,d- of the amendment made by the Legislature of Gujarat in the Act. The Act was passed by the legislature of the then State of Bombay 1953 with view to provide for the constitution of fund for financing the activities for promoting the. welfare of labour in the State of Bombay. Section 2(10) of the Act defined "unpaid accumla-rion" as meaning all payments due to the employees but not made to them within period of three years from the date on which they beca~c due, whether before or after the commencement of the Act, including the wages and gratuity legally payable, but not including the amount of contribution, if any, paid by any employer to Provident Fund esta-blished under the Employees' Provident Fund Act, 1952. Section 3 ( l) provided that the State Government shall constitute fund caiJed the Labour Welfare Fund and that notwithstanding anything contained in any other Jaw for the time being in force, the sums specified in sub-section (2) shall, subject to the provisions of sub-section ( 4) and sec-: ion 6A be paid in to the fund. Clause (b) of sub-section (2) of s. 3 provided that the Fund shall consist of "all unpaid accumulations". Section 7 (1) provided that the fund shall vest in and be applied by the Board of Trustees subject to the provisions and for the purposes of the Act. Section 19 gave power to the State Government to make rules and in the exercise of that power, the State Government made the Rules. Rules 3 and 4 concernecf the machinery for enforcing the provisions of the Act in regard to fines and unpaid accumulations.In Bombay Dyeing & Manufacturing Co, Ltd. v. The State of Bombay and Others(l) this Court held that the provisions of sections 3 ( 1) and 3 (2) (b) were invalid on the ground that they violated the fundamental right of the employer under article 19(1)(0. The reasoning of the Court was that the effect of the relevant provisions of the Act was to transfer to the Board the debts due by the employer to the employees free from the bar of limitation without discharging the employer from his liability to the employees and that s.3(1) ~here­fore operated to take away the moneys of the employer wtthoul releasing him from his liability to the employees. The Court also

; j (\ '

found that there was no machinery provided for adjudication of the claim of the employees when. the amounts were required to be paid to the fund. The State sought. to justify the provisions of the' Act as ~ne relating to abandoned property and, therefore, by their very nature, they could not be held to violate the rig!tts of any person either under article 19(l)(f) or article 31 (2). The Court did not. accept the contention of the S~ate but held that the purpose of legislation with respect to abandoned property being in the first instance to safeguard the property for the benefit of the true owners and the State taking it over only in the absence of such claims, the law which vests the property absolutely in the Stat.e without regard to the claims of the true owners cannot be considered as one relating to abandoned property. On May 1, 19601 the State of Bo!Jlbay was bifurcated into the States of Maharas.htra and Gujarat. The legislature of Gujarat there-after enacted to First Amendment Act making various amendments in the Act, some of them with retrospective effect. ·The First Amend-ment Act was intended to remedy the defects pointed out in the decision of this Court in the Bombay Dyeing Case(l).. The preamble to the First Amendment Act recites that "it is e~pedient to constitute Fund for the financing of .activities to promote welfare of labour in the State of Gujarat, for conducting such activities and for certain other purposes". Section 2(2) defines 'employee'. Section 2(3) defines 'employer' as any person who employs either directly or through another person either on behalf of himself or any other person, one or more employees in an establishment and includes certain other persons: Section 2 ( 4) defines 'establishment' and that sub-section .E as amended reads :-"2 ( 4) 'Establishment' means :

(i) factory;

(ii) Tramway or motor omnibus service; and

(iii) Any establishment including society registered under the Societies Registration Act, 1960, and . charitable or other trust, whether registered under the Bombay Public. Trusts Act, 1950, or not, which carries on any business or trade or arey work in connection with or ancillary thereto and which employs or on any working day during the preceding twelve months employed more than fifty persons; but does not include an establishment (not being factory) of the Central or any State Government." Sub-section (10) of s. 2 defines 'unpaid accumulations' :

'"unpaid accumulations' means all payments due to the employees but not made to them within period of three years from the date on which -they became due whether before or after the commencement of this Act including the wages and gratuity legally payable but not including the amount of contribution if any, paid by an employer to (I) [1958} S.C.R. 1122. 6-L 84 Sup 1/75

S1,]PR£M~ COURT .REPORTS i1974] .3 S.C.R,

- provid~nt fund established under the Employees' Provident Funds Act, 1952'.', .

Section 3 is . retrospectively amended and the amended section in its material part ·provides that the State Government shall · constitute fu...W ailled the Labour Welfare Fund and that the Fund shall con-sist of, among other things, all unpaid accumulations. It provides that the sums specified shall be collected by such agencies and in such manner and the accounts of the fund shall be maintained and audited in such man~er as may be prescribed. The ~ection further. provides that notwithstanding anything ~ontained in any law for the · time being in force or any contract or instrument, all unpaid accumulations shall be collecteq by such agencies and in s.uch manner as may be prescribed and be paid in the first instance to the Board which shall keep separate account therefor untU claims thereto have been decided in the manner provided in s.6A. Section 6A is new section introduced retrospectively in the Act .and sub-section (1) and (2) of thai section state that all unpaid accumulations shall be deemed to be :-:';:-.::::oned property and that any unpaid accumulations paid to the Board in accordance with the provisiotts of s.3 shall, on such payment, discharge an e~loyer of the· liability to make payment to an employee in respect thereof, but to the extent only of the ·amount paid to the Board and that the liability to make payment to the emplovee to the extent ttforesaid shall, subject to the other ptovisions of the section, be deemed to be tramferred to the. Board. Sub-section (3) provides that as soon as possible after any unpaid accumulation is paid to the Board, the Board shall, by public notice, call . upon interested employees to submit to the Board their claims for any pay-ment due to them. Sub-section ( 4) provides that such public notice shall contain such particulars as may be prescribed and that it shall be affixed on the notice board or in its absence on conspicuous part of the premises, of each establishment in which the unpaid accumu-lations were earned and shall be published in the Official Gazette and also in any two newspapers in the language commonly understood in the area in which such establishment is situated, or in such other manner as may be prescribed, regard being had. to the amount of the claim. · Sub-section (5)states that after the notice is first affixed and published under sub-section ( 4) it shall be again affixed and published from time to time for period of three years from the date on which it was first affixed and published, in the manner provided in that sub-section in the months of June and December each year. Sub-section (6) states that certificate of the Board to the effect that the provisi\lns of sub-section (4) at)d (5) were complied with shall be conclusive evidence thereof. Sub-section (7) provides that any claim received whether in answer to the notice or otherwise within period of. four years from the date of the first publicatioR of the notice in respect o( such claim, shall be transferred by the Board to the authority appointed under s. 15 of the Payment of Wages Act, 1936, having jurisdiction in the area in which the factory or establishment is situated, and the Authority shall proceed to adjudicate upon and decide sud1 da:.,. ~nJ that in bearing such claim the Authority shall have the powers con-ferred by and shall fo1Iow the procedure (in so far as it is applicable) . followed in giving effect to the provisions of that Act. Sub-section (8)

GUJARAT v. AMBICA MILLS LTD' •. (Mathew, /,) 769 states that if in deciding any claim under sub-section (7), the Authority allows· the whole or part of such claim, it shall declare that the. unpaid accumulation in relation to which the claim is made shall, .to the extent to which the claim is allowed ceases to be abandoned property and snall order the Board to pay to the claimant the amount of the claim as allowed by it and the Board shall make payment accordingly : provided that the Board shall not be liable topay any sum in excess of that paid under sub-section ( 4) of s.3 to the Board as unpaid accumulations, in respect of the claim. Sub-section (9) provides for an appeal against the decision rejecting any claim. Sub-section (10) provides. that the Board shall comply with any oi:der made in appeal. Sub-section ( 11) makes the decision in appeal final and conclusive as to the right to receive payment, the liablity of the Board to pay ana also. as to the amount, if any: and sub-section (12) states that if no claim is made within the, time specified in sub-section (7) or a- claim or part thereof has been ·'rejected, then the unpaid accumulations in respect of such claim shall accrue to and vest in the State as bQna vacantia and shall thereafti!r without further assurance be deemed to be transferred to ana form part of the Fund. Section 7(1) provides that the Fund shall vest in and be held and applied by the Board as Trustees subject to the prqvisions and for the purposes of the Act and the moneys in the Fund shall be _utilized by the Board to defray the cost of carrying out tneasures which may be specified by the State Government. fro~ time to time to promote the . welfare of labour and of their dependents. Sub·section (2) of s.7 specifies various measures for the benefit of employees in general ' on which the moneys in the Fund may be expended by the Board.

Section 11 provides for the appointment of an officer called the Welfare Commissioner and defines his powers and duties. Section 19 confers rule-making power on the State Government. Section 22 empowers the State Government by notification in the official gazette to exempt any cJass of·establishment from aU or any of the provisions of the Act subject to ·such conditions as may be specified in. the notification. During the pendency of the writ petition before the High Court, 1he Gujarat Legislature passed the Bombay Labour Welfare Func:l (Gujarat Amendment) Act, 1962 on February 5, 1963 (hereinafter referred to as the Second Amendment Act) introducing sub-section (13) in s.6A with retrospective effect from the date of commencement of the Act That sub-section provid~s as follows : '' ( 13) Nothing in the foregoing provisions of this section shall apply to unpaid accumulations not already paid to the Board; (a) in respect of which no separate accounts have been maintained so that the unpaid claims of employ('es are not traceable. or · (b) which are proved to have been spent before the sixth d~y of December, _1961,

(1974) 3 '>.C:.R.

and accordingly such unpai~ accumulations . shall not be liable to be collected and pa1d under sub-sectton ( 4) of sec-tion 3". .

The State Govcrnn1ent, in the cxercis~ of its rulc-maki~g power under s. 19 amended the Rules by amendmg ~ulc ~ and addu~g new new rule 3A setting out the particulars to be contamed rn the pubhc notice notice issued under s. 6A (3) ·

rulc-maki~g power ~ and and addu~g new new rn the pubhc notice notice before the High and they they were : right of (f) an~, t!Jerefore, t!Jerefore, J Conshtutton and the Welfare Welfare Com-l that discrimination discrimination , s. 2 ( 4) 4) and since since impungcd provisions provisions the impugned pro-I I I the first respon-impugned provi-D right und~r and tbu.s tbu.s show that that the action taken of 'establishment' iu l I under article I reason. ary to to see what the I I shall b.: I shaJJ taken them them I accumulations treat-treat-in s. s. 6A will have l to (6) of s. s. 6A employees to su~mit su~mit 1 and sulrsecttoo.~ i adjudication of claims of claims claims notice. lt is oni,Y date of the of the the publJ-rejected wholly or or

The first respondent raised several contcn~ions before the High Court but the Court rejected aU except two ot them and they they were : (1) that the impugned provisions violate~ the fundamental right of citizen-employers and employees u~der arttclc 19 (1) (f) an~, t!Jerefore, t!Jerefore, the provisions were void under arttclc 13 (2) of the Conshtutton and hence there was no law, and so, the notice issued by the Welfare Welfare Com-missioner was without the authority of law; and (2) that discrimination discrimination was writ Iarac in the definition of 'establishment' in s. 2 ( 4) 4) and since since the definitiOJ~ permeates through every part of the impungcd provisions provisions and is an integral part of the impugned provis!ons, the impugned pro-visions were violative of article 14 and were VOid.

So, the two questions in this appeal arc, whether the first respon-dent was competent to challenge the validity of the impugned provi-~fons on the basis that they violated the fundamental right und~r article 19 (I) (f) of citizen-employers or employees and tbu.s tbu.s show that that the law was void and non-existent and, therefore, the action taken against it was bad; and whether the definition of 'establishment' iu s. 2(4) violated the fundamental right of the respondent under article 14 and the impugned provisions were void for that reason.

Defore adverting to these questions, ir is necessary to to see what the Act, after it was amended, has purported to do.

By s. 6A(l) it was dedarcd that unpaid accumulations shall b.: deemed to. be abandoned property and that the Board shaJJ taken them them over. As soon as the Board takes over the unpaid accumulations treat-treat-ing them a.s abandoned property, notice as provided in s. s. 6A will have to~ published an.d claims invited. Sulrsections (3) to (6) of s. s. 6A pronde for pu?ltc ~otice calling upon interested employees to su~mit su~mit to the Board thetr cJaHns for any payment due to them and sulrsecttoo.~ (7~ to (~ 1) ol '· 6A Jay down the machinery for adjudication of claims of claims claims ~htch m!gh~ be rccei\·ed in pursuance to the public notice. lt is oni,Y Jf ~0 clatm IS made f~r period Of 4 years from the date of the of the the publJ-~atton of the first nottcc, or, if claim is malic but rejected wholly or or tn part,. that ~te State appropriates the unpaid accumulations as bot~a · vacamla. .It ~s not as if unpaid accumulations become bona vaccmtw on the c1:p1ratton of three years They are no doubt deemed to bl! ~~;1[nd~ncd ][propcr~y ][under ][s ][.. ][6A(l) ][•. ][but ][th~y ][arc ][not'appropriah:d ][~: ].a l acam~a Untd after claimS are IOVitcd in pursuance to rubfl~; OIJtla< and dL~poscd of. ··cct -~~ ~o~~on law, abandoned personal property could not be the sub· J . /.itltheat. It could only be appropriated by the sovereign as bona ;~c"!1~f_J)e Ho!dsworth:s History of English Law. 2nd ed., vol . . 1· ' -. ; ' The So\·eretgn has prcrogatiVI! right tO aprropn:Lle"

. • .. . I . - .. ·· ' -~· ;'

bona vacantia. And abandoned property can be appropriated by the Sovereign as· bona vacantia.

Unpaid accumulations represent the obligation of the 'employers' to the 'employees' and they are the property of the emplqyecs. In other words, what is being treated as a!landoned property is the obligiJ,· tion to the employees owed by the employers and which is property from the standpoint of the employees. No doubt, when we look at the scheme of the legislation from p~;actical point of view, what is being . treated as abandoned property is the money which the employees are entitled to get from the employers and what·the'Board takeS over is the obligation of the employers to pay the amount due to the employees in consideration of the moneys paid by the employers to the Board. The State, after taking the n;10ney, · becomes liable to mak~ the· payment to the employees to the extent of the amount received. Whether the liability assumed by the State to the employees is an altogether new lia· bility or the old liability of the employers is more matter of academic interest than of practical consequence.

When the moneys . representing the unpaid accumulations are paid to the Board, the liability of the employers to make payment to the employees in respect of their claims agamst the employers would be dis· charged to the extent of the amount paid to the Board and on such lia· bility beitlg transferred to the Board,. the debts or claims to that extent cannot thereafter he enforced against the employer.

We think that if unpaid accumulations are not claimed within total · period of 7 years, the mactivity on the part of the employees would furnish adequate basis for the administration by State of the unasserted claims Clr demands. We cannot say that the period of 7 years allowed to the employees .for the purpose of claiming unpaid accumulations is an unreasonably short one which will result in the infringement c~ any constitutional rights of the employees. And, in the absence of some J>~.:rsuasive reason, which is lacking here, we see no reason to think that the State will be, in fact, less able or less willing to pay the amounts when it has taken them over. We cannot also assume that the mere ~ubstitution of the State as the d~btor will deprive the employees of their property or impose on them any unconstitutional burden. And, in the absence of showing of injury, actual or threatened, there can be no constitutional argument against the taking over of the unpaid accumulations by the State. Since the employers are the debtors of the employees, they can interpose no objection if the State is lawfUlly entitled t() demand the payment, for, in that case, payment of the debt to the State under the statute releases. the employers of their liability ~o the employees. As regards notice, we are of the· view that all persons having property located within state and subject to its dominion must take npte of its statutes affecting control and disposition of such .pro. perty and the procedure prescribed for these PuiPoses. The vanous modes ot notice prescribed in s. 6A are sufficient ~o give reasonable infonnatioit to ·the employees to come forward and claim the amount if they. really, want to do so.

Be that as it may, we do not, however, think it necessary to consi· der whether the High Court was right in its view that the impugned p~

visions violated the fundamental rights of the citizen-employers or emplo-yees, for, it is wise tradition with courts that they will not adjudge on the constitutionality of statute except when they are called upon to do so when legal rights of the litigants are in actual controversy and as part of this rule is the principle that one to whom the application of statute in constitutional will not be heard to attack the statute on the ground that it must also be taken as applying_ to other persons or other sttuations m which its application might be unconstitutional [see Uniled States v. Raina.Y(l)J.

"A person ordinarily is precluded from challenging the cons-titutionality of governmental action by invoking the rights of others and it is not sufficient that the statute or administrative regulation is unconstitutional as to other persons or classes of persons; it must affirmatively appear that the person attack-ing the statute comes within the class of persons affected by it."

(see Corpus Juris Secundum,_ vol. 16, pp. 236-7).

We, however, proceed on the assumption that the impugned provi-sions abridge the fundamental right of citizen-employers and citi'l;en-employees undcr article 19 ( 1) (f) in order to decide the further ques-tion and that is, whether, on that assumption, the first respondent could cJaim that the law was void as against the non-citizen. employers or employees under article 13(2) and further contend that the non-citizen employers have been deprived of their property without the autb_ority of Jaw, as, ex hypothesi void law is nullity.

It is settled by the decisions of this Court that Corporation is not citizen for the purposes of article 19 and has, therefore, no · funda-mental right under that article (see Tata EnQineering and Locomotiv~ Co. Ltd. v. State of Bihar and others([2]), R. C. Cooper v. Union of India(&). The same view was taken in Bennett Coleman & Co. etc., etc. v. Union of India and Others(()].

As already stated, the High Court found that the impugned provi-sions, in s() far as they abridged the fundamental rights of the citizen~ employers and employees under article 19 ( 1) (f) were void under article 13(2) and eve.n if the respondcnt:company had no fundamental right under article 19(1) (f), it had the ordinary right to hold and dis-pose of its property, and that the right cannot be taken away or even affected except under the authority of 1aw. Expressed in another way, the reasoning of the Court was that since the impugned provision~ became void as they abridged the fundamental right under' article 19(1) (f) of the citizen-employers and employees the law was void and non-est, and therefore, the first respondent was entitled to challenge the. notice issued by the Welfare Commissioner demanding the unpaid accumulation as unauthorized by any law.

The first respondent, no doubt, }Jas the ordinary right of every per· son in the country to hold and dispose of property and that right, if

(I) 362 U.S. 17. (3) [1970] 3 S.C.R. 530.

(2) [1964] 6 S.C.R. 88.5. (4) [1972] 2 s.c.c. 788.

taken away or even affected by the act of an Authority without the authority of law, would be illegaL That would give rise to justiciable issue which can be agitated in proceeding under article 226.

The real question, therefore, is, even if law takes away or abridges the fundamental right of citizens under article 19 ( 1 ){f), whether it would b~ void and therefore non-est as respects non-citizens ?

In Keshava Madhava Menon v. State of Bombay(l) the question was whether prosecution commenced before the coming into force of the Constitution could be continued after the Constitution came into force as the Act in question there became void as violating article 19 (1) (a) and. 19 ( 2) . Das, J. who delivered the majority judgment was of the view that the prosecution .could be continued on the ground that the provisions of the Constitution including article 13 (1) were not retrospective. The learned judge said that after the commence-ment of the Constitution, no existing law could be allowed to stand in the way of the exercise of fundamental rights, that such inconsistent laws were not wiped off or obliterated from the statute book and that the statute would operate in respect of all matters or events which took place before the Constitution came into force and that it is also operated after the Constitution came into force and would remain in the statute book as operative so far as non-citizens are concerned.

This decision is clear that even though law which is inconsistent with fundamental rights under article 19 would become void after the commencement of the Constitution, the law would still continue in force· in so far as non-citizens are concerned. This decision takes the view that the word 'void' in article 13(1) would not have the effect of wiping ot1t pre-Constitution laws from the statute book, that they will continue to be operative so far as non-citizens are concerned, notwithstanding the fact that they are inconsistent with the fundamental rights of citizens and therefore become void under article 13 (1 ) .

In Behram Khurshed Pesikaka v. State of Bombay(") the question was about the scope of article 13 ( 1) . This Court had held that certain .P.rovisions of the Bombay Prohibition Act, 1949 (a pre-Constitution Act), in so far as they prohibited the possession, use and consumption of medicinal preparations were void as violating article 19(1) (f). The appellant was prosecuted under the said Act and he pleaded that he had taken medicine containing alcohol. The controversy was whether the burden of proving that fact was on him. It became necessary to con-sider the legal effect of the declaration made by this Court that s. 13 (b) of the said· Act in so far as it affected liquid medicinal and toilet prepa-rations containing alcohol was in valid as it infringed article 19 ( 1) (f) . At the first hearing all the judges were agreed that declaration by Court that part of section was invalid did not repeal or amend that section. Venkatarama Aiyar, J. with whom Jagannadhadas, J. ~as inclined to agree, held that distinction must be made between un-constitutionality arising from lack of legislative competence and that arising from violation of constitutional limitations on legislative

(1) [1951] S.C.R. 228.

(2) [i955]1 S.C.R. 613.

power. According· to him, if the law is made without legislative com-petence, it was nullity; law violating constitutional prohibition enacted for the benefit of the public generally was also nullity; but law violating constitutional prohibition enacted for individuals was not nullity but was merely unenforceable. At the second hearing of the case, Mahajan, J. after referrring to Madhava Menon's _Case([1]), said that for determining the rights and obligations of citizens, the part declared vbid should be notionally taken to be obliterated from the section for all intents and purposes though it may remain written on th~ statute book and be good law when question arises for determi-nation of rights and obligations incurred prior to January 26, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. Das, J. in his dissenting judgment held that to hold that the invalid part was obliterated would be tantamount to saying covertly that the judicial declaration had to that extent amended the section. At p. 659, the learned Judge observed :

''It is beyond all dispute that it is for the Court to judge whether the restrictions imposed by any existing law or any part thereof on the fundamental rights of citizens are reason-able or unreasonable in the interest of the general public or for the protection of the interests of any Scheduled Tribe. If the Court holds that the restrictions are unreasonable then the Act or the part thereof which imposes such unreasonable restrictions comes into onflict and becomes inconsistent with the fundamental right conf~rred on the citizens by article 19(1) (f) and is by article 13(1) rendered void, not in toto or for all purposes or for all persons but 'to the extent of such inconsistency' i.e., to the extent it is inconsistent with the exercise of that fundamental right by the citizens. This is plainly the position, as I see it."

Mahajan, CJ. rejected the distinction between law void for lack of legislative power and law void for violating constitutional fetter cir limitation on legislative power. Both these declarations, according to the learned Chief Justice, of unconstitutionality go to the root of the power itse!f and there is no real distinction between them and they represent but two aspects of want of legislative power.

In Bhikhaii Narain Dhakras v. State of M.P.([2 ]) the question was whether the C.P. and Berar Motor Vehicles (Amendment) Act, 1947, amended s. 4.3 of the Motor Vehicles Act, 1939, by introducing provi-sions which authorized the Provincial Government to take up the entire motor transport business in the Province and run it in competi-tion with and even to the exclusion of motor transport operators. These provisions, though valid when enacted,· became void on the coming into force of the Constitution, as they vio1ated article 19 (l )(g). On June 18, t9S 1, the Constitution was amended so as to authorize the

(1) [19Sl] S.C.R. 228.

(2) l19SS] 2 S.C.R. S89.

State to carry on business "whether to the exclusion, complete or par· tial. or citizens or otherwise''. notification was issued after the amendment and the Court was conc;erned with the validity of the noti-fication. The real question before the Court ·was that although s. 43 was void between January 26, 1950, and June 18, 1951, the amend-· ment of the article 19(6) had the affect of removing the constitutional invalidity of s. 43 which, from the date of amendment, became valid and operative. After referring to the meaning given to tlle word 'void' · jn Keshava Madhva Menon's Case (I) 1 Das, Acting C.J. said for the Court:"All laws, existing or future, which are· inconsistent with the J?rovisions of Part III of our Constitution are, by the express provision of article 13, rendered void 'to the extent · of such ,mconsistency'. Such laws were not dead for all pur-poses. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens. 1It is only as a~ainst the citizens that they remained in dormant or monbund condition" (at pp. 599·600).

In M. P. V. Sundararamaier v. State of A.P.(~), Venkatarama Aiyar, J. said that law made without legislative competence and law violative of constitutional limitations on legislative power were both unconstitutional and both had the same reckoning in court of law; and they were both unenforceable but it did not follow from this that both laws were of the same quality and character and stood on the same footing for all purposes. The propositipn laid down by the learned Judge was that if law is enacted by legislature on topic not within its competence, the law was nullity but if the law was on topic with-in its competence but if it violated some constitutional prohibition, the law was onJt unenforceable and not nullity. In other words, law if it lacks legislative competence was absolutely null and void and subsequent cession of the legislative topic would not revive the law which was still-born an.d the law would have to be re·enacted; but law within the legislative competance but violative of constitutional limitation was un-enforceable but once the limitation was removed, the law became effective. The learned judge said that the observa~ · tions of Mahnjan, J, in Pesikaka's c<1se([3]) that qua citizens that part of s.13(b) of the Bombay· Prohibition Act, 1949, which bad been declared invalid by this Court ''had to be regarded as null and void"' · could not in the context be construed as implying that the impugned Jaw must be regarded as non·est so as to be incapable of taking effect when the bar was removed. He summed up the result of the autho~ rities as follows :

"Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the ){ purpose of enforcement of the valid portion thereof, and

(1) [1951] S.C.R 223. (2) [1958] S.C.R. 1422. (3) [19SS]I S.C.R. 613.

being on the statute book, even that portion which is unen-forceable on the ground that it is unconstitutional will ope-rate proprio vigore when the Constitutional bar is removed, and there is no need for fresh legislation."

In Deep Chand v. Siate of U. P. and Others(!) it was held that post-Constitution law is void from its inception but that pre-Constitution law having been validly enacted would continue in forco so far as non-citizens are concerned · after the Constitution came· intd force. The Court further said that there is no distinction in the meaning. of the word 'void' in article 13(1) and in 13(2) and that it connoted the same concept but, since from Jts inception the post-Constitution lay is void, the law cannot be resuscitated without re-enactment. Subba Rao, J. who wrote the majority judgment said after citing the observations of Das, Actg. C.J. in Keshava Madhavai Menon's Case(supra):"The second part of the observation ·directly applies only to case covered by article 13 ( 1) , for the learned' Judges say that the laws exist for the purposes of pre-constitution rights and liabilities and they remain operative even after the Constitution as against non~citizens. The said observation could not obviously apply to pc~t Constitu· tution laws. . Even so, it is said that by parity of r~ason-ing the post-Constitution laws are also void to the extent of th~ir repugnancy and therefore- the law in respect of non~ citizens will be on the statute-book and by the application of the doctrine of eclipse, the same result should flow in its case also. There is some plausibility in this argument, but it ignore'> one vital principle, viz:, the existence or the non~existence of legislative power or competency at the time the law is made governs the situation" (p. 38).

Das, C.J. dissented. He was of the view that post~Constitution law may infringe either fundamental right conferred on citizens only or fundamental· right conferred on any person, citizen or non-citizen and that in the. first case the law will not stand in the way of the exercise by the citizens of that fundamental right and, there-fore, will not have .any operation .on. the rights of the citizens, but it will be quite effective as regards non-citizens.

In Mahendra Lal laifli v. The State of U.P. and Others([2]), the court was of the view that the meaning of the word 'void' is the same both in article 13 ( 1) and article 13 ( 2) and that .the application of the doctrine of eclipse in the case of .pre-Constitution laws and not in the case of post-Constitution laws does not depend upon t}le two parts of article 13; "that it arises from the inherent difference bet-ween article 13(1) and·article 13(2) arising from the fact that one is dealing with pre~Constitution laws, and the other is dealing with post~Constitution laws, with the result that in one ·case the laws being not still-born the doctrine of eclipse will apply while in the other

(I) [1959] Supp, 2 S.C.R. 8.

(2) [1963] Supp. 1 S. C: R. 912.

case the law being stillpborn there will be no scope for the application of the doctrine of eclipse." ·

If the meaning of the word 'void' in article 13 ( 1) is the same as. its meaning in article 13 ( 2), it is difficult to understand why pre-Constitution law which takes away·or abridges the rights under a_rticle 19 should remain. operative even after the Constitution came into force· as regards nonpcitizens and post-Constitution law which takes away or abridges them should not ·be operative as respects non-citizens. The fact that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as respects non-citizens after the Constitution came into force as it became void ort account of its inconsisten~y wlth the provisions of Part III. There-fore, the real reason why it remains operative as against non-citizens is that it is void only to the extent. of its inconsistency with the rights conferred under Article 1.9 and that its voidness is, therefore, confined to citizens, as, ex. hypot~si, the law became inconsistent with their-fun9amental rights alone. If that be so, we see no reason why post-Constitution law which takes away' or abridges the rights con-ferred by article 19 should not be 'operative in regard to non·citizens as it is void cjnly to the extent of the contravention of the rights con-D terred on citizens, namely, those under article 19.Article 13(2) is an injunction to the 'state' not to pass any law which t~kes away or abridges the fundamental rights conferred by Part III· and the· consequence of the contravention of the injunction is that the law would be void to the extent of the contravention. The expression 'to the extent of the contravention' in the sub-article can cnly mean, to the extent of the contravention of the rights conferred under that part. Rights do . not exist in vacuum. They must always inhere in some person whether natural or juridical and, under ParU. llf, they inhere even in fluctuating bodies like linguistic or religious minorities or denominations. And, when the sub-article says that the law would be void "to the extent of the contravention", it can only mean to the extent of the contravention of the rights conferred on persons, minorities or denominations, as the case rna~ be. Jl,l.st as pre-Constitution law taking away. or abridging the fundamental rights under article 19 remains operative after the Constitution came into force . .as respects non-citizens as it is not inconsistent with their fundamental rights, so also post-Constitution law offending article 19, remaiiit. operative ~s against non-citizens as it is not in contravention of any of their fundamental rights. The same scheme permeates both the sub-articles, namely, to make the law void in article 13(1) to the extent of the inconsistency with the fundamental rights, and in article 13 (2) to the extent of the contravention of those rights. In ether words, the voidness is not in rem but to the extent · CJJlY of inconsistency or contravention, as the case may be of the rights con-· ferred under Part III. Therefore, when article 13(2) uses the ex-pression 'void', it can only mean, void as against persons whose funda-mental rights are taken away or abridged by law.. The law might be 'still-born' so far· as the persons, entities or denominations whose fundamental rights are taken away or abridged, but there is no reason

why the law should be void or 'still-born' as against those who have no fundamental rights.

It is said that .the expression "to the extent of the contravention" in the article means that the part of the law which contravenes the( fundamental right would alone be void and not the ether parts which do not so contravene. In other words, the argument was that the expression is intended to denote only the part of the law that would become void and not to show that the law will be void only as regards the persons or entities whose fundamental rights hate beeh taken away or abridged.

The first part of the sub-article speaks of 'any law' and the second part refers to the same Jaw by using the same expression, namely, ·any law'. We think that the expression 'any law' occurring in the latter part of the sub-article must necessarily refer to the same ex-pression in the former part and therefore, the Constitution-makers have already made it clear that the law that would be void is only the law that contravenes the fundamental rights conferred by Part Ill, and so, the phrase 'to the extent of the contravention' can mean only to the extent of the contravention of the rights conferred. For ins-tance, if section in statute takes away or abridges any of the rights conferred by Part III, it will be vc;d because it is the law embodied in the section which takes away or abridges the fundamental right. And this. is precisely what the sub-article has said in express terms by employing the expression 'any law' both in the former and the latter part of it. It is difficult to see the reason why the Constitution-makers wanted to state that the other sections, which did not violate the fundamental right, would not be void, and any such categorienl statement would have been wrong, as the other sections might be void if they are inseparably knitted to the void one. When we see that the latter part of the sub-article is concerned with the effect of the voilation of the injunction contained in the former part, the words ''to the extent of the contravention" can only refer to the rights con~ ferred under Part III and denote only the compass of voidness with respect to persons or entities resulting from the contravention of the rights conferred upon them. Why is it that law is void under article 13(2) ? I~is only because the law takes away or abridges funda-mental right. There are many fundamental rights and they inhere in diverse 'types of persons, minorities or denominations. There is no conCeivable reason why law which takes away the fundamental right of one class of persons, or minorities or denominations should be void as against others who have no such fundamental rights as, ex hypo~ thesi the law cannot contravene their rights.

ltwas submitted that this Court has rejected the distinction drawn by Venk:atarama Aiya~, J. in Sundararamaiers case(l) between legis-iative incapacity arising from lack of power under the relevant legis-lative entry and that arising from check upon legis-lative power on account of constitutional provisions like fundamental rights and that if the Jaw enacted by legislature having no capacity in tbe former sense would be void in rem, there is no reason why law passed by legislature having no legislative capacity in the latter {I) [ 1958] S.C.R. 1422:-

sense is void only cua persons whose fundamental rights are taken away or abridged.

1t was also urged that the expression "the State shall not make any law" in article 13(2) is clear mandate of the fundamental law of th~ land and, therefore, it is case of total incapacity and total want of power. But the question is: what is the mandate? The mandate is that the State shall not make any law which takes away or abridges the rights conferred by Part III. If no rights a~e con-ferred under Part III upon person, or, if rights are conferred, but fhey are not taken away or abridged by the law, where is the incapa-city of the legislature? It may be noted that both in Dttp Chand's Case (supra) and Mahendra Lal lain's case (supra), the decision in Sundararamaier's case (supra) was not adverted to. If on textual reading of article 13, the conclusion which .we have reached is the only, reason.able one, we need not pause to consider whether that conclusion could be arrived at except on the basis of the distinction drawn by Venkatarama Aiyar, J, in . Sundararamaie's case(supra). However, we venture to think that there is nothing strange in the notion ci legislature having no inherent '·legislative capacity or power to tak~ away or abridge by law the fundamental rights conferred on citizens and yet having legislative power to pass the same law in respect of non-citizens who have no such fundamental rights to be taken away or abridged. In other words, the legislative incapacity subjectwise with reference to Articles 245 and 246 in this context would be the takinJ away or abridging by law the fundamental rights under Art~cle 19 of citizens. Mr. H. W. R. Wade has urged with considerable force that the terms 'void' and 'voidable' are inappropriate in the sphere of adminis-trative law(t). According to him, there is no such thing as voidnes~ in an absolute sense, for, the .whole question is ~ void as against whom ? And he cites the decision of the Privy Council in Durayap-pah v. Femaitdo([2]) in his support:

In Jagannath v. Authoristd Officer, Land Rejorms(8) this Court has said that post-constitution Act which. has been struck down for violating the fundamental rights conferred under Part III and was therefore still-born, has still an existence. without re-enactment, for being put in the Ninth Schedule. That only illustrates that any state-ment that -a law which takes away or abridges fundamental rights conferred under Part III is still-born or null and void requires quali-tications in certain situations. Although the gener~ rule . is . that statute declared unconstitutional is void at all times and that its in-validity must be recognized and acknowledged for 1 purposes and is no law and nullity, this is neither universally no absolutely true, and there are many exceptions to it. realistic approach has been eroding the doctrine of absolute nullttv in .all cases and for all pur- · pci:;es ( [4 ]) and it has been held that such broad statements must be

(I) See "Unlawful Administrative Action:', 83 Law Quarterly Rev. 499, at

(2) (1967) 3 W.L.R. 289. (4) See Warrirrg. v. Co/pcys, 122 F. 2d 642.

t3) [1971) 2 S.C. C. 893,

SUPREME COURI' REPORTS

1aken with some qualifications( [1 ]), that even an unconstitutional statute is an operative fjlct(2) at least prior to determination of constitutionality(!), and may have consequences which cannot be ignored{t). See Corpus Justice Secundum, Vol. 16, p. 4.69).

This is ilJQStrated by the analysis given by kelse)l(3) :

"The decision made by the competent authority that something that presents itseJf as norn1 is null ab initio because it fulfils the conditions of nullity determined by the legal order is constitutive act; it has definite legal effect; without and prior to this act the phenomenon in question cannot be considered as null; Hence ·the decision is not 'declaratory', that is to say, it is not, !lS it presents itself, declaration of nullity; it is true annuJment,. an annuJment with retro~active force. There must be something legally existing to which this decision ·reters. Hence, the phen~ menon in question cannot be something null ab initio, that is to say, legally nothing. It. has to be considered as norm annulled with retroactive for~ by the decision declar~ ing it null ab iniiio. . Just as everything King Midas touched turned into gold, everyl:hing to which the law refers becomes !.aw, i.e., something legally existing".

·we do not thj.nk it necessary to pursue this aspect further in this case. For our putpose it is enough to say that if law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot take advantage of the voidness of the law for the reason that it contravenes the fundamental right of citizens and claim that there is no law at all. Nor would this proposition violate any principle of equality before the law because .citizens and non<itizens are not similarily situated :as the citizens have certain fundamental rights which non-citizens have not. Therefore, even assuming that under article 226 of the Constitution, the first responden.t was entitled to move the High Court and seek remedy for irifringement of its ordinary right to property, the impugned provisions were not non-est but were valid laws · enacted by competent legislature as respects non~citizens and the first respondent cannot take the plea that its rights to property are being taken away or abridged without the autho-rity of law.

Now, let us see wb~ther the definition of 'establishment' in s. 2(4) violates the right under article 14 and make the impugned provisions void.

The High Court held that there was no inteUigible differentia to distinguish establishments grouped together under the definition of 'establishment' in s. 2(4) and establishments left out of the group and that in any event, the differentia had nci rational relation or nexus with the object sought to be achieved by the Act and that the im-

(l) See ChicrJt Country Drai11age District v. Baxtl!r Stat( Bank, Al'k .• 308 U.S. 371.

l2) See warring~v. colpoys, I:!Z F. 2d 642. t3) Sc:e "General Theory of Law and State", p. 161.

pugned provisions as they affected the rights and liabilities of em· ployers and employees in respect cif the establishments defined in s. 2(4) were, therefore, violative of article 14. The reasoning of the High Court was that all factories falling within the meaning of s. 2(m) of the Factories Act, 1948, were brought within the purview of the definition of 'establishment' while establishments carrying busi-B ness or trade and employing less than fifty persons were left out and that out of this latter class of establishments an exception was made and all establishments carrying on th~ business of tramways or motor omnibus services were included without any fair reason and that, though Government establishments which were factories were in-cluded within the definition of • 'establishment', other . Government establishments were excluded an_d, therefore, the classification was unreasonable. ·. . The definition of 'establishment includes factories, tramway or motor omnibus services and any establishment carrying on business or trade and employing more than 50 persons, but excludes all Government establishments carrying on business or trade. ln the High Court, an affidavit was filed by Mr. Brahmbhatt, Deputy Secretary to Education and Labour Department, wherein, it was stated that the differentiation between factories and commercial establishments employing -less than 50 persons was made for the rea~ son that the turnover of labour is more in factories than in ·commer-cial establishments other than factories on account of the fact that industrial labour frequently changes .employment for variety of reasons. The High Court was not -prepared to accept this explanation. The High Court said : ''

"It may' ~ that in case of commercial establishment employing not more than 50 persons the. turnov~;r of labour • in commercial establishment~ being less, the unpaid accumula-tions may be small. But whether unpaid accumulation Ure small or large is an immaterial cc.nsideration for the putpose of the enactn)ent o.'f the impugned provision~. The object of the impugned provisiPns being to get at the unpaid accurtlu-lations and to utilize them for the benefit of labour, the extent of the unpaid accumulations with' any particular es· tablishment can never be relevant consideration."

According to the High Court, as _lfl establishthent carrying on tramway or motor omnibus service wdilld be within the defil)ition of establishment even if it employs less thaq, 50 persons, or for thtit matter, even less than 10 persons, the reason given in the affidavit of Mr. Brahmbhatta fot exclud~ng all commerdat~stablishi'l'lents employing lc~s than SO persons from. the definition was iio.t tenable. The. Courts . was also of the view that when Gove.(nment factories were included in the definition of 'estab1ishment' there was 110 'reason ~or excluding government establishments other than factories from the definition~ The affidavit of Mr. Brahmbhatt made it clear that there were hardly any establishments of the Central or Stnte Governments which carried

on business or trade or any work in connection with or ancillary there4 to and, therefore, the legislature did not think it fit to extend the provi4 sions of the Act to such establishments. No affidavit in rejoinder was filed on behalf of respondents to contradict this statement.

It would be an idle parade of familiar learning to review the multi-tudinous cases in which the constitutional assurance of equality before the law has been applied.

The equal protection of the laws is pledge of the protection of equal laws. But laws may classify. 'And the very idea ct classifica-tion is that of inequality. Jn tackling this paradox the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken middle course. It has resolved the contradictory demands of legislative specialization and constitutional generality by doctrine of reasonable classification. ( 1)

reasonable classification is one which includes all who are simi-larly situated and none who are not. The question then is what does the phrase 'simi~arly situated' mean ? The answer to the question is that we must look beyond the classification to the purpose of the Jaw. reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of law may be either the elimination of public mischief or the achievement of some positive public good. classification is under-inclusive when a}) 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, classification is bad as under-inclusive when State benefits or burdens persons in manner that furthers legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated/ as well. In other words, this type of dassification imposes b~den upon 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 an male children born on particular day because one of them would som~ day bring about his downfall employed such classification.

The first question, therefore, is whether the exclusion of establish-. rnents carrying on\ business or trade and employing less than 50 persons makes the classification under-inclusive, w}len it is seen that ali fac-tories employing 10 or 20 persons, as the case may be, have been included and that the purpose of the law is to get in unpaid accumula-tions for the welfare of the labotp". Since the cJassification does not include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreas-onable. But the Court has recognised the very real difficulties under which legislatures operate-difficulties arising out of both the nature

(l} . See Joseph Tussman and Jacobus ten Brcek, "The Equal Protaction of the Laws", 37 California Rev. 341.

of the legislative process and of the society which .legislation attempts perennially to .re-shape-and it has refused to strike down indiscrlmi-~ately aU legislation embodying classificatory inequality here under consideration. Mr. Justice Holmes, in urging tolerance of under-inClu-sive classifications, stated that such legislation should not be disturbed by the Coutt unless it can clearly se~ that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched (1), What, the.n. are the fair reasons for non-extension? What should court do when it is faced with law making an undet-inclusive classification in areas relating to economic and tax matters? Should. it, by its judgment, force the legislature to .. choose between inaction or perfection ?

The legislature canJ;~ot be required to impose upon administrative aget.~es tasks which cannot be carried out or whicll must be carried out on large scale at single stroke.

"If the Jaw presumably hits the evil where it is most -felt. it is not to be overthrown because there are other instances to which it might have been applied. There is no doctrinaire requirement that the legislation should be couched in all em-D bracing terms." . ·

(see West Coast Hotel Compqny v. Parrish[2]).

The piecemeal approach to genetal problem permitted by under-inclusive classifications, appean justified when it is considered that legisl~tive dealing with such problems is usually an e.xperimental mat-ter. It is. impossible to tellllow successful partiCUlar approach may be, what dislocations might occur, what evasions might develop. what new evils might . be generated in the attempt. Administrative expe-dients must be. forged and tested. Legislators, reco_gnizing these fac-tors, may wish to proceed cautiously,. and courts must allow them to do so (supra).

Administrative convenience in the c()]lection of unpaid accumula-F tions is factor to be taken into accoun~ in. adjudging whether the classification is· reasonable. legislation may take o~ step at time addressink itself to the phase of the prOblem which seems most acute to the legislative mind. · Therefore, legislature might select only· one phase of one filed for applicati?n or remedy(•).

It may be remembered that article 14 does not require that every regulatory statute apJ)!y to all .in the same business : where size· is an indeJ: to the evil at which the law is directed. discriminations bet~n the larse and small are permissible, and it is also Permissible for.Rform to take one step at time, ad~ itself to the phase of the problem which, seems moat acute to the legislative mind. ·

(1) See.Mi8101lri, R ol T Rfy., v. Moy (1904) 194 US 267, 269. (2) 300 u.s. 319, 400.

(3} See 1'II'D G11ys from Horrlsoll-.41/tntowtt v, McGittlrJ·, 366 U.S. S82, S92, 7-Ls.tSup.c.t.ns

legislative authority acting within its field is not bound to extend its 1·egulatic~ to all cases which it might possibly reach. The legisla-ture 'is free to recognize degrees of harm and it may confine the restric-tions to those classes of ca..:;es where the need seemed to be clearest [see Mutual Loan, Co. v. Martelf(1)].

In short, the problem of legislative classification is perennial one, admitting of no doctrinaire definition. Evils in the same filed may be of different. dimensions and proportions requiring different remedies. Or so the legislature rtlay think [see Tigner v. Texas(2)].

Once an objective_ is decided to be within legislative competence, however, the working out of classifications has been only infrequently impeded by judicial negativ~s. The Courts attitude cannot be that the state either has to regulate all b!lsinesses, or even all related business-es, and in the same way, or, not a·t all. An effort to strike at parti-cular economic evil could not be hindered by the necessity of carrying in its wake train of vexatious, troublesome and expensive regulat[ons covering the whole range of connected or similar enterprises.

Laws regulating economic activity would be viewed differently from laws which touch and concern freedom of speech and religion, voting, procreation, rights with respect to criminal procedure, etc. The pro-minence given to the equal protection clause in many modern opinions and decisions in America all show that the Court feels less constrained to give judicial deference to legislative judgment in the field of human and civil rights than in that of economic regulation and that it is making vigorous use of the equal protecti~n clause to strike down legislative action in the area of fundamental human rights([3]). "Equal Protec-tion clause rests upon two largely subjective judgments : one as to the relative invidiousness of particular differentiation and the other as to the relative importance of the subject with respect to which equality is sought"(').

The question whether, under article 14, classification is reasonable or unreasonable must, in the ultimate analysis depend upon the judicial approach to the problem. The great divic}e in this area lies in the..<liffer-ence between emphasizing the actualities·'or the abstractions of legisla-tion. The more complicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversi· ties. . "Statutes are directed to less ·than universal situations. Law reflects distinction that exist in fact or at least appear to exist in the judgment of legislators-those .who have the· responsibility for making iaw fit fact. Legislation is. essentially empiric. It ·addresses itself to the more or less crude outside world and not to the :neat, logical models of the mind. Classification is inherent in . Iegisl~ttion. · To ttcogrtize

(1) 56 L. Ed., 175, 180.

(2) 310 U.S. !41.

(3) S~;e "Developments-Equal Protection" 82 Harv. L~.w Rev., 106S, at 1127 (4) See Cox, "The Supreme Court Foteward", 1966 Term, 80 Harv. Law Rev. 91-95.

marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic" (1).

That the legislation is directed to practical problems, that the eco-nomic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry, that exact wisdom and nice adaption of remedies cannot be required, that judgment is.Iargely prophecy based on meagre and uninterpreted experience, should stand as reminder that in this area the Court does not take the equal protection requirement in pedagogic manner (supra) .

In the utilities, tax and economic regulation cases, there are good reasons for judicial self~restraint if not judicial deference to legislative judgment The legislature after all ha~ the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncer-tainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events--self· . limitation can be seen to be the path to judicial wisdom and institutional prestige and stability(supra).

We must be fastidiously careful to observe the admonition of .Mr. Justice Brandeis, Mr. Justice Stone and Mr. Justice Cardozo that we do not "sit as super~legislature" (see their dissenting opinion in Colgate v. HarveJ(2). . Let us look at us look at at the problem here in the light of the above discussion.

Let us look at us look at at the problem here in the light of the above discussion. The purpose of the Act is to get unpaid accumulations for utilizing them for the welfare of labour in general. The aim of any legislature would then be to get the unpaid accumulation from aU concerns. So an ideal classification should include all concerns which have 'unpaid accumulations'. But then there are practical problems. Administra-F tive convenience as well as· the apprehension whether the experiment. it' undertaken as an all-embracing one will be successful, are legitimate considerations in confining the realization of the objective in the first instance to large concerns s.uch as factories employing large amount/of labour an~ with statutory duty to keep register of wages, paid and unpaid, and the legislature has, in fact, brought all factories, whether owned by Government of otherwise, within the purview of the defini-tion of 'establishment'. In other words, it is from the factories that tl;le greatest amount of unpaid accumulations could be collected and since the factories are bound to maintain records from which the amount of unpaid accumulations could be easily ascertained, the legisla· ture brought all the factories within the definition of 'establishment'. Jt then: addressed itself to other establishments but thought that establish-ments employing, less than 50 persons need not be brought within the

(1) See the observations of Justice· Frankfurter in Morty v. Doud, 3~4 u.s. 457, 472. (2) 2'96 U.S. 404, 44L

pur_view of the definition as unpaid ,accumulations in those establish-ments would be less and might not be sufficient to meet the adminis-trative expenses of collection and_ as many of them might not be main· taining records from which the amount of unpaid accumulations could be ascertained. The affidavit of Mr. Brahmbhatt made it clear that unf>aid accumulations in these. establishments would be comparatively small. The reasor•. why government establishments other than factories were not included 'in the definition is also stated in the affidavit of Mr. Brahmbhattt namely, that there were hardly any establishments run by the Central or State Government. This statement was not contradicted by any affidavit in rejoinder.

There remains then the further question wheiher there was any justification for including tramways and motor omnibuses within the purview of the definition. So far as tramways and motor omnibuses arc concerned, the legislature of Bombay, when.it enacted the Act in 1953, must have had reason to think that unpaid accumulations in these concerns would be large as they usually employed large amount of labour force and that they were bound to keep records of the Y{ages earned and paid. Section 2(ii) (a) of the Payment ot Wages Act, 1936, before that section was amended in 1965 so far as tt is material provided:

"2. In this Act, unless there is anything repugnant in the subject or context,-

(ii) "industrial establishment'' means any--

(a) tramway or motor omnibus service''.

Rule. 5 of the Bombay Payment of Wages Rules, 193i provided =

"5. Register of Wages : Register of Wages shall be maintained in every factory and industrial establishment and may be kept .in such form as the paymaster find3 convenient but shall include the following particulars :

(a) the gross wages earned by each person employed for each wage period;

(b) all deductions made from those wages, with an indi-cation in each case of the clause of sub-section (2) of section 7 under which the deduction is ' 111adc-: -

(c) the wages actually paid to each person employed for each wage period."

The Court must be aware of its own remoteness and 1.lck of fami-liarity with local problems. Classification is dependent on the peculiar needs and specific difficulties of the community. The needs and diffi-culties of the community are constituted out of facts and opinions be-yond the easy ken of the court (supra). It depends to great extent upon an assessment of the local condition of these concerns which the legislature alone was competent to make.

Judicial deference to legislature in instances uf economic regula· tion is sometimes explained by the argument that ra1ionality of ' classification may depend upon 'local conditions· about \\hich local

legislative or administrative body would be better informed than court. Consequently, lacking the capacity to inform tt~elf fully about the peculiarities of particular local situation, court should hesitate to dub the legislative classificaton irrational (see Carmichnel v. Southern Coal and Coke Co.(l). Tax laws, for example, may respond closely to local needs and court's familiarity with these needs i~ likely to be limited.

Mr. S. T. Desai for the appellants argued that, if it is held that the inclusion of tramways and motor omnibuses in the category of 'csta· blishment' is bad, the legislative intention to include factories and esta-blishments employing more than 50 persons should not be thwarted by striking down the whole definition. He said that th.: doctrine of severability can be applied and that establishments runmng tramways and motor omnibuses can be excluded from the definition without in the least sacrificing the legislative intention.In Skinner v. Iklahoma ex rel Williamsone), statute providing for sterilization of habitual criminals excluded emben:lers and certain other criminals from its coverage. The Supreme Court found that the statutory classification denied equal protection and remanded the case to the State Court to determine whether the sterilization prcrvisions should be either invalidated or made to cover all habitu::l criminals. Without elaboration, the State Court held the entire statute unconsti-tutional, declining to use the severability clause to remove the exception that created the discrimination. ·1n Skinner's case the exception maY have suggested particular legislative intent that one class should not l.lc covered even if the result was that none would be. But there is no necessary reason for choosing the intent to ell.clude one group over the intent to include another.. Courts may reason that without legislation none would be covered, and that invalidating the exemption therefore amounts to illegitimate judicial legislation over the remaining class not previously covered. The conclusion, then, is to invalidate the whole statute, no matter how narrow the exemption had been. The. reluctance to extend Iegisl11.tion may be particularly great if statute defining crime is before court, slnce extension would make hchaviour crimi-nal that had not been so before. But the consequences o[ invalidation will be unacceptable .if the legislation is necessary to an important pub-Tic purpose. For example, statute requiring licensing of all doctor'S except those from certain school could be found to deny equal pro-tection, but court should be hesitant to choose invalidation of licens-G ing as an appropriate remedy. Though the test is imprecise, court must weigh the general interest in retaining the statut~ against the court's own reluctance to extend legislation to those uot previously covered. Such an inquiry may lead court into examination of legis-lative purpose, the overall statutory scheme, statutory arrangl."ments in connected fields and the n'!cds of the public C).

(l) 301 u.s. 495. (2) 316 u.s. 535. (3) See "Developments-Eq\~:tl Protection", 82 Harv. law Rev., 1065, at rr. 1136-7.

[1974] 3 S.C.R.

This Court has, without articulating any reason, applied the doctrine of severability by deleting the offending clause which made classifica-tion unreasonable fsee Jalan Trading Co. v. Mazdoor Union([1]) and Anamlji & Co. v. S.T.0.(2)].

Whether court can remove the unreasonableness of classification when it is under-inclusive by extending the ambit of the legislation to cover the class omitted to be included, or, by applying the doctrine of severability delete dausc which makes classificatioll over-inclusive, arc matters on which it is not necessary to express any final opinion as we have held that the inclusion of tramway and motor omnibus service in the definition of 'establishment' did not mak() the classlficaiion un-reasonable having regard to the purpose of the legislation.

In the result, we hold that the impugned sections are valid and aUow the appeals with costs. Hearing fee one set.

Appeals allowed.

(I) (1967] 1 S.C.R. 15.

(2) [ 1968] J S.C. R. 661.