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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2850 OF 2012

(Arising out of SLP (C) No.8479 of 2010)

N.K. Bajpai …Appellant

Versus

Union of India & Anr. …Respondents

WITH

CIVIL APPEAL NOS. 2851 OF 2012

(Arising out of SLP (C) Nos.8482 of 2010)

AND

CIVIL APPEAL NOS. 2852 OF 2012

(Arising out of SLP (C) Nos.8484 of 2010)

J U D G M E N T

Swatanter Kumar, J .

1.Leave granted.

2.This judgment shall dispose of all the above three appeals,

as common questions of law arise therefrom, on somewhat

similar -facts for consideration of this Court. In these appeals,

the following questions have been raised :

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“(i)Whether Section 129(6) of the Customs

Act, 1962, which stipulates that on demitting

office as Member of the Customs Excise and

Service Tax Appellate Tribunal (hereinafter

referred to as the “CESTAT”) a person shall not

be entitled to appear before the CESTAT, is

ultra vires the Constitution of India?

(ii)Whether the said provision applies to the

petitioner, as it was introduced after the

petitioner had not only joined as Member of

the CESTAT but also demitted office as such

Member?”

3.We may notice the basic factual premise from which the

above legal questions have arisen for consideration of this

Court. Primarily, we would be referring to the facts of SLP (C)

No.8482 of 2010 titled P.C. Jain v. Union of India & Ors.

4.The appellant joined the Indian Customs and Central

Excise Service, Class – I (later called Group ‘A’), in the year

1956, where he served for a number of years, in different

capacities. On 1

st

November, 1990, the appellant was selected

as a Member (Technical) in the Customs, Excise and Gold

(Control) Appellate -Tribunal (CEGAT). The appellant demitted

his office as Member (Technical) of CEGAT on 7

th

March, 1993.

As he was a law graduate, he was enrolled as an advocate with

the Bar Council of India on 18

th

March, 1993. The CEGAT was

replaced by the Central Excise and Service Tax Appellate

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Tribunal (for short, ‘the CESTAT/Tribunal’. Vide Finance Act,

2003, Section 129(6) was introduced to the Customs Act, 1962

(for short ‘Customs Act’) in terms of which, the members of the

Tribunal were debarred from appearing, acting or pleading

before it. Aggrieved by this amendment, the appellant along

with other appellants in other appeals claimed to have met the

Finance Minister and submitted a detailed representation

bringing out the inequities and arbitrariness claimed to be

resulting from the insertion of Section 129(6) of the Customs

Act. The Tribunal, on 9

th

July, 2007, passed an order holding

that the appellant or the persons similarly situated, were not

entitled to appear before it in view of the bar contained in

Section 129(6) of the Customs Act. In the meanwhile, the

Ministry also responded negatively to the representations

submitted by the appellants. Faced with these circumstances,

the appellants filed a writ petition before the High Court of

Delhi at New Delhi being Writ -Petition No.6712 of 2007, which

was heard by a Division Bench of the High Court and was

dismissed vide judgment dated 13

th

April, 2009, hence, giving

rise to the present appeals.

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5.The Tribunal took the view that the word ‘appellate

tribunal’ as referred to in Section 129(6), is defined under

Section 2(1B) of the Customs Act to mean the Customs, Excise

and Service Tax Appellate Tribunal constituted under Section

129 of the Customs Act and any person ceasing to hold office

as President, Vice-President or Member cannot appear before

the Tribunal or its Benches anywhere in India in view of the

bar in Section 129(6). One of the appellants, namely, N.K.

Bajpai, was relieved from the case. The appellants had

contended before the High Court that Section 129(6) of the

Customs Act is ultra vires Articles 14, 19(1)(g) and 21 of the

Constitution of India. It was further contended that, in any

event, Section 129(6) has no applicability to the appellants, in

view of the fact that the amendment was prospective, but

when the appellants were appointed to the Tribunal as well as

when they demitted office, the said provision was not a part of

the Customs Act. Thus, they prayed for consequential relief.

The High Court, -by a detailed judgment, rejected both these

contentions. It was of the view that the predominant rationale

for introduction of this provision was to strengthen the cause

of administration of justice and to remove what the

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Legislature, in its wisdom, felt was a perceived class bias. It

was further held that the restriction imposed could not be said

to be unreasonable and was held to withstand the test of

Article 19(6) of the Constitution. It also held that once the

right to appear, act or plead is taken away in respect of the

Tribunal, since the same forum hears and adjudicates upon

the matters concerning three streams of law, the persons

concerned are automatically debarred from acting, appearing

or pleading before such forum, i.e., the Tribunal in respect of

all matters. The High Court even referred to some of the

judgments of this Court, as well as to Article 220 of the

Constitution, which places a prohibition or limitation on the

right of a permanent Judge of the High Court to plead or act

before the Court of which he had been a permanent Judge

and/or before the Courts, Tribunals, Authorities over which the

said Court had exercised supervisory jurisdiction.

6.Before we dwell upon the merits of the contentions

raised or the correctness of the reasons given by the High

Court, it will be appropriate for us to reproduce the provisions

of Section 129 of the Customs Act, which read as follows :

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“129 – Appellate Tribunal—(1) The Central

Government shall constitute an Appellate Tribunal

to be called the Customs, Excise and Service Tax

Appellate Tribunal consisting of as many judicial

and technical members as it thinks fit to exercise

the powers and discharge the functions conferred

on the Appellate Tribunal by this Act.

(2) A judicial member shall be a person who has for

at least ten years held a judicial office in the

territory of India or who has been a member of the

Indian Legal Service and has held a post in Grade I

of that service or any equivalent or higher post for

at least three years, or who has been an advocate

for at least ten years.

Explanation.—For the purposes of this sub-section—

(i) in computing the period during which a person

has held judicial office in the territory of India,

there shall be included any period, after he

has held any judicial office, during which the

person has been an advocate or has held the

office of a member of a Tribunal or any post,

under the Union or a State, requiring special

knowledge of law;

-

(ii)in computing the period during which a person

has been advocate, there shall be included

any period during which the person has held a

judicial office, or the office of a member of a

Tribunal or any post, under the Union or a

State, requiring special knowledge of law after

he became an advocate.

(2A) A technical member shall be a person who has

been a member of the Indian Customs and Central

Excise Service, Group A, and has held the post of

Commissioner of Customs or Central Excise or any

equivalent or higher post for at least three years.

(3) The Central Government shall appoint--

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(a) a person who is or has been a Judge of a High

Court; or

(b) one of the members of the Appellate Tribunal,

to be the President thereof.

(4) The Central Government may appoint one or

more members of the Appellate Tribunal to be the

Vice-President, or, as the case may be, Vice-

Presidents, thereof.

(5) A Vice-President shall exercise such of the

powers and perform such of the functions of the

President as may be delegated to him by the

President by a general or special order in writing.

(6) On ceasing to hold office, the President, Vice-

President or other Member shall not be entitled to

appear, act or plead before the Appellate Tribunal.”

7.Part III of the Constitution is the soul of the Constitution. It

is not only a charter of the rights that are available to Indian

citizens, but is even completely in consonance with the basic

norms of human rights, recognized and accepted all over the

world. The fundamental rights are basic rights, but they are

neither uncontrolled nor without restrictions. In fact, the

framers of the Indian Constitution themselves spelt out the

nature of restriction on such rights. Exceptions apart, normally

the restriction or power to regulate the manner of exercise of a

right would not frustrate the right. Take, for example, the most

valuable right even from amongst the fundamental rights, i.e.,

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the right to freedom of speech and expression. This right is

conferred by Article 19(1)(a) but in turn, the Constitution itself

requires its regulation in the interest of the ‘public order’ under

Article 19(2). The State could impose reasonable restrictions on

the exercise of the rights conferred, in the interest of the

sovereignty and integrity of India, the security of the State,

friendly relations with foreign States, public order, decency or

morality or in relation to contempt of Court, defamation or

incitement of an offence. Such restrictions are within the scope

of -constitutionally permissible restriction. Exercise of legislative

power in this respect by the State can be subjected to judicial

review, of course, within a limited ambit. Firstly, the challenger

must show that the restriction imposed, at least prima facie, is

violative of the fundamental right. It is then that the burden lies

upon the State to show that the restriction applied is by due

process of law and is reasonable. If the restriction is not able to

satisfy these tests or either of them, it will vitiate the law so

enacted and the action taken in furtherance thereto is

unconstitutional. It is difficult to anticipate the right to any

freedom or liberty without any reasonable restriction. Besides

this, the State has to function openly and in public interest. The

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width of the expression ‘public interest’ cannot be restricted to a

particular concept. It may relate to variety of matters including

administration of justice.

8.Let us also examine the fundamental rights and their

restrictions as a constitutional concept. In the case of S.

Rangarajan v. P. Jagjivan Ram and Ors. [(1989) 2 SCC 574],

while dealing with the censorship of a film, this Court observed :

-

‘……There does indeed have to be a

compromise between the interest of freedom

of expression and special interests. But we

cannot simply balance the two interests as if

they are of equal weight. Our commitment of

freedom of expression demands that it cannot

be suppressed unless the situations created by

allowing the freedom are pressing and the

community interest is endangered. The

anticipated danger should not be remote,

conjectural or far-fetched. It should have

proximate and direct nexus with the

expression. The expression of thought should

be intrinsically dangerous to the public

interest. In other words, the expression should

be inseparably locked up with the action

contemplated like the equivalent of a ‘spark in

a power keg’.’

9.Where the Court applies the test of ‘proximate and direct

nexus with the expression’, the Court also has to keep in mind

that the restriction should be founded on the principle of least

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invasiveness, i.e., the restriction should be imposed in a manner

and to the extent which is unavoidable in a given situation. The

Court would also take into consideration whether the

anticipated event would or would not be intrinsically dangerous

to public interest. -

10.Now, we have to examine the various tests that have been

applied over a period of time to examine the validity and/or

reasonability of the restrictions imposed upon the rights.

11.No person can be divested of his fundamental rights. They

are incapable of being taken away or abridged. All that the

State can do, by exercise of its legislative power, is to regulate

these rights by imposition of reasonable restrictions on them.

Upon an analysis of the law, the following tests emerge:-

a) The restriction can be imposed only by

or under the authority of law. It cannot

be imposed by exercise of executive

power without any law to back it up.

b)Each restriction must be reasonable.

c)A restriction must be related to the

purpose mentioned in Article 19(2).

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12.The questions before us, thus, are whether the restriction

imposed was reasonable and whether the purported purpose of

the same squarely fell within the relevant clauses discussed

above. The legislative determination of what restriction to

impose on a freedom -is final and conclusive, as it is not open

to judicial review. The judgments of this Court have been

consistent in taking the view that it is difficult to define or

explain the word “reasonable” with any precision. It will

always be dependent on the facts of a given case with

reference to the law which has been enacted to create a

restriction on the right. It is neither possible nor advisable to

state any abstract standard or general pattern of

reasonableness as applicable uniformly to all cases.

13.A common thread runs through Parts III, IV and IVA of the

Constitution of India. One Part enumerates the fundamental

rights, the second declares the fundamental principles of

governance and the third lays down the fundamental duties of

the citizens. While interpreting any of these provisions, it

shall always be advisable to examine the scope and impact of

such interpretation on all the three constitutional aspects

emerging from these Parts. It is necessary to be clear about

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the meaning of the word “fundamental” as used in the

expression “fundamental in the governance of the State” to

describe the directive principles which have not legally been

made enforceable. Thus, the word “fundamental” has been --

used in two different senses under our Constitution of India.

The essential character of the fundamental rights is secured by

limiting the legislative power and by providing that any

transgression of the limitation would render the offending law

pro tanto void. The word “fundamental” in Article 37 of the

Constitution also means basic or essential, but it is used in the

normative sense of setting, before the State, goals which it

should try to achieve. As already noticed, the significance of

the fundamental principles stated in the directive principles

have attained greater significance through judicial

pronouncements.

14.As difficult as it is to anticipate the right to any freedom

or liberty without any reasonable restriction, equally difficult is

it to imagine the existence of a right not coupled with a duty.

The duty may be a direct or indirect consequence of a fair

assertion of the right. Although Part III of the Constitution of

India confers rights, still the duties and restrictions are

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inherent thereunder. These rights are basic in nature and are

recognized and guaranteed as natural rights, inherent in the

status of a citizen of a free country, but are not absolute in

nature and uncontrolled in operation. Each -one of these

rights is to be controlled, curtailed and regulated, to a certain

extent, by laws made by the Parliament or the State

Legislature. In spite of there being a general presumption in

favour of the constitutionality of a legislation under challenge

in case of allegations of violation of the right to freedom

guaranteed by clause (1) of Article 19 of the Constitution, on a

prima facie case of such violation being made out, the onus

shifts upon the State to show that the legislation comes within

the permissible restrictions set out in clauses (2) to (6) of

Article 19 and that the particular restriction is reasonable. It is

for the State to place appropriate material justifying the

restriction and its reasonability on record.

15.The Advocates Act, 1961 (hereinafter referred to as ‘the

Advocates Act’) itself was introduced to implement the

recommendations of the All India Bar Committee made in

1953. It aimed at establishment of an All India Bar Council, a

common roll for the advocates and integration of the Bar into

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a single class of practioners known as ‘advocates’. It was also

to create autonomous Bar Councils, one for the whole of India

and one for each State. The Advocates Act provides for

various aspects of the legal -profession. Under Section 29 of

the Advocates Act, only one class of persons is entitled to

practice the profession of law, namely, advocates. Section 30

of the Advocates Act provides that subject to the provisions of

the Act, every advocate whose name is entered in the State

rolls shall, as a matter of right, be entitled to practice

throughout the territories to which this Act applies, in all

courts including the Supreme Court of India. Such an

Advocate would also be entitled to practice before any tribunal

or person legally authorized to take evidence and before any

other authority or person before whom such an advocate is, by

or under any law for the time being in force, entitled to

practice. Section 33 of the Advocates Act further states that

except as otherwise provided in that Act or in any other law for

the time being in force, no person shall, on or after the

appointed day, be entitled to practice in any court or before

any authority or person unless he is enrolled as an advocate

under the Advocates Act. A bare reading of these three

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provisions clearly shows that this is a statutory right given to

an advocate to practice and an advocate alone is the person

who can practice before the courts, tribunals, authorities and

persons. But this right is statutorily regulated by two

conditions – one, that a -person’s name should be on the State

rolls and second, that he should be permitted by the law for

the time being in force, to practice before any authority or

person. Where the advocate has a right to appear before an

authority or a person, that right can be denied by a law that

may be framed by the competent Legislature. Thus, the right

to practice is not an absolute right which is free of restriction

and is without any limitation. There are persons like Mukhtiars

and others, who were earlier entitled to practice before the

Courts, but the Advocates Act itself took away the right to

practice which was available to them prior to its coming into

force. Thus, the Advocates Act placed a complete prohibition

upon the right to practice of those persons who were not

advocates enrolled with the State Bar Council.

16.Therefore, the right to practice, which is not only a

statutory right under the provisions of the Advocates Act but

would also be a fundamental right under Article 19(1)(g) of the

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Constitution is subject to reasonable restrictions. An argument

could be raised that a person who has obtained a degree of

law is entitled to practice anywhere in India, his right, as

enshrined in the -Constitution and under the Advocates Act

cannot be restricted or regulated and also that it is not

necessary for him to enroll himself on any of the State rolls.

This argument would be fallacious in face of the provisions of

the Advocates Act as well as the restrictions contemplated in

Article 19(6) of the Constitution. The Legislature is entitled to

make a law relating to the professional or technical

qualifications necessary for carrying on that profession.

17.We may also refer to a recent development of law in

relation to right of the advocates or former judicial officers, to

practice the profession of law. The Bar Council of India has

been vested with the general power to make rules under

Section 49 of the Advocates Act. In furtherance to this power

vested with it, the Bar Council of India has framed the Bar

Council of India Rules. Chapter III of these Rules deals with the

conditions for the right to practice. Rule 7 of Chapter III of the

said Rules is quite in pari materia with Section 129(6) of the Act

and it reads as under :

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“An officer after his retirement or otherwise ceasing

to be in service for any reasons, if enrolled as an

Advocate shall not practice in any of the Judicial,

Administrative Courts/Tribunals/Authorities, which

are -

presided over by an officer equivalent or lower to

the post which such officer last held.”

18.Rules 7 and 7A of the Bar Council of India Rules, were

introduced by the Bar Council of India on 14

th

October, 2007.

19.This Rule clearly mandates that upon his retirement or

when otherwise ceasing to be in service for any reason, a

person will not be able to practice in the administrative

tribunal, other tribunals, authorities, courts etc. over which he

had presided and which were headed by an officer in a post

equivalent to or lower than the post which he had held. The

definition in the explanation of what an officer shall mean and

include further widened the scope of interpretation. Not only

this, requiring adherence to professional standard and values,

Rule 7A further makes it mandatory that a person who has

been dismissed, retrenched, compulsorily retired, removed or

otherwise retired from Government Service or service of the

High Court or Supreme Court on the charges of corruption,

dishonesty unbecoming of an employee, etc. would not even be

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enrolled as an advocate on the rolls of a State Bar Council.

These provisions clearly demonstrate the intention of the

Legislature to place restrictions for entry to the profession of

law. These restrictions have to be decided only on the

touchstone of reasonableness and legislative competency. The

restriction which withstands such a test would be enforceable

in accordance with law.

20.The contention raised on behalf of the appellants before us

is that Section 129(6) of the Customs Act imposes a complete

restriction upon the appellants and, therefore, is

unconstitutional. While examining the merit of this contention,

we must notice that there is no challenge to the legislative

competence of the Legislature which enacted and inserted

Section 129(6) of the Act. Once there is no challenge to the

legislative competence and the provision remains as a valid

piece of legislation on the statute book, then the only question

left for this Court to examine is whether this provision is so

unreasonable that it inflicts an absolute restriction upon

carrying on of the profession by the appellants. For two

different reasons, we are unable to hold that the restriction

imposed under Section 129(6) of the Act is unreasonable or

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ultra vires. Firstly, it is not an absolute restriction. It is a partial

restriction to the extent that the persons who have held the

office of the President, Vice--President or other Members of the

Tribunal cannot appear, act or plead before that Tribunal. In

modern times, there are so many courts and tribunals in the

country and in every State, so that this restriction would hardly

jeopardize the interests of any hardworking and upright

advocate. The right of such advocate to practice in the High

Courts, District Courts and other Tribunals established by the

State or the Central Government other than the CESTAT

remains unaffected. Thus, the field of practice is wide open, in

which there is no prohibition upon the practice by a person

covered under the provisions of Section 129(6) of the Customs

Act. Secondly, such a restriction is intended to serve a larger

public interest and to uplift the professional values and

standards of advocacy in the country. In fact, it would add

further to public confidence in the administration of justice by

the Tribunal, in discharge of its functions. Thus, it cannot be

held that the restriction has been introduced without any

purpose or object. In fact, one finds a clear nexus between the

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mischief sought to be avoided and the object aimed to be

achieved.

-

21.Now, we may deal with some of the judgments, where

similar restrictions imposed by law were found to be valid and

unexceptionable. In Sukumar Mukherjee v. State of West

Bengal [(1993)3 SCC 723, the State of West Bengal had

prohibited private practice by medical practioners who were

also teaching in the medical institutions. This was provided

under Section 9 of the West Bengal State Health Service Act,

1990. The argument raised was that this provision was

repugnant to Section 27 of the Indian Medical Council Act, 1956

which, in turn, provides for the right of a registered medical

practitioner to practice, as well as an argument that it ultra

vires Articles 19(1)(g), 19(6) and 14 of the Constitution of India.

This Court repelled both these contentions and held that the

prohibition against the members of the West Bengal Medical

Education Service (WBMES) from practicing privately was not

unconstitutional or repugnant to the statutory provisions. It

only regulated a class of persons, i.e., the persons who were

members of that service and secondly, this was intended to

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maintain standards of the medical education which was the

very object of enacting the Indian Medical Council Act.

-

22.Similarly, while dealing with the question as to whether

the closure of butcher houses on national holidays or on certain

particular days was unconstitutional and violative of the

fundamental right to carry on business in terms of Articles

19(1)(g), 19(6) and 14 of the Constitution, in the case of

Municipal Corporation of the City of Ahmedabad & Ors. v. Jan

Mohammed Usmanbhai & Anr. [(1986) 3 SCC 20], a

Constitution Bench of this Court, while rejecting the challenge,

held as under :

“17. Clause (6) of Article 19 protects a law which

imposes in the interest of general public reasonable

restrictions on the exercise of the right conferred by

sub-clause (g) of clause (1) of Article 19. Obviously

it is left to the court in case of a dispute to

determine the reasonableness of the restrictions

imposed by the law. In determining that question

the court cannot proceed on a general notion of

what is reasonable in the abstract or even on a

consideration of what is reasonable from the point

of view of the person or persons on whom the

restrictions are imposed. The right conferred by

sub-clause (g) is expressed in general language and

if there had been no qualifying provision like clause

(6) the right so conferred would have been an

absolute one. To the persons who have this right

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any restriction will be irksome and may well be

regarded by them as unreasonable. But the

question cannot be decided on that basis. What the

court has to do is to consider whether the --

restrictions imposed are reasonable in the interest

of general public. In the State of Madras v. V.G.

Row this Court laid down the test of reasonableness

in the following terms:

“It is important in this context to bear in mind

that the test of reasonableness, wherever

prescribed, should be applied to each

individual statute impugned, and no abstract

standard, or general pattern of reasonableness

can be laid down as applicable to all cases.

The nature of the right alleged to have been

infringed, the underlying purpose of the

restrictions imposed, the extent and urgency

of the evil sought to be remedied thereby, the

disproportion of the imposition, the prevailing

conditions at the time, should all enter into the

judicial verdict.”

19. The expression ‘in the interest of general public’

is of wide import comprehending public order,

public health, public security, morals, economic

welfare of the community and the objects

mentioned in Part IV of the Constitution. Nobody

can dispute a law providing for basic amenities; for

the dignity of human labour like provision for

canteen, rest rooms, facilities for drinking water,

latrines and urinals etc. as a social welfare measure

in the interest of general public. Likewise in respect

of legislations and notifications concerning the

wages, working conditions or the other amenities

for the working class, the courts have adopted a

liberal attitude and the interest of the workers has

been protected notwithstanding the hardship that

might be caused to the employers. It was,

therefore, open to the legislature or the authority --

concerned, to ensure proper holidays for the

municipal staff working in the municipal

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slaughterhouses and provide certain closed days in

the year. Even according to the observations of the

High Court nobody could have any objection to the

standing orders issued by the Municipal

Commissioner under Section 466(1)(D)(b) if

municipal slaughterhouses were closed on certain

days in order to ensure proper holidays for the

municipal staff working in the municipal

slaughterhouses. The only objection was that the

standing orders direct closure of the

slaughterhouses on Janmashtami, Jain Samvatsari,

October 2 (Mahatma Gandhiji's birthday), February

12 (Shraddha day of Mahatma Gandhi), January 30

(Mahatma Gandhiji'sNirwan day), MahavirJayanti

and Ram Navami. These days were declared as

holidays under the standing orders for the Municipal

Corporation slaughterhouses.

20. The tests of reasonableness have to be viewed

in the context of the issues which faced the

legislature. In the construction of such laws and in

judging their validity, courts must approach the

problem from the point of view of furthering the

social interest which it is the purpose of the

legislation to promote. They are not in these

matters functioning in vacuo but as part of society

which is trying, by the enacted law, to solve its

problems and furthering the moral and material

progress of the community as a whole. (See Jyoti

Persh adv. Union Territory of Delhi) If the

expression ‘in the interest of general public’ is of

wide import comprising public order, public security

and public morals, it cannot be said that the

standing orders closing the slaughterhouses -

on seven days is not in the interest of general

public.

21. In view of the aforesaid discussion we are not

prepared to hold that the closure of the slaughter

house on seven days specified in the two standing

orders in any way put an unreasonable restriction

on the fundamental right guaranteed to the

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petitioner-respondent under Article 19(1)(g) of the

Constitution.

22. This leads us to the second contention raised on

behalf of the respondent, which is based on Article

14 of the Constitution. The High Court had repelled

this contention for a valid reason with which we

fully agree.

23. It is now well established that while Article 14

forbids class legislation it does not forbid

reasonable classification for the purposes of

legislation and that in order to pass the test of

permissible classification two conditions must be

fulfilled, namely, (i) the classification must be

founded on an intelligible differentia which

distinguishes persons or things that are grouped

together from others left out of the group, and (ii)

such differentia must have rational relation to the

object sought to be achieved by the statute in

question. The classification, may be founded on

different basis, namely, geographical, or according

to objects or occupations or the like and what is

necessary is that there must be a nexus between

the basis of classification and the object of the Act

under consideration. There is always a presumption

in favour of constitutionality of an enactment and

the burden is upon him who attacks it, to show that

there has been a clear violation of the constitutional

principles. The courts must -presume that the

legislature understands and correctly appreciates

the needs of its own people, that its laws are

directed against problems made manifest by

experience and that its discriminations are based

on adequate grounds. It must be borne in mind that

the legislature is free to recognise degrees of harm

and may confine its restrictions to those cases

where the need is deemed to be the clearest, and

finally that in order to sustain the presumption of

constitutionality the court may take into

consideration matters of common knowledge,

matters of common rapport, the history of the times

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and may assume every state of facts which can be

conceived to be existing at the time of legislation.

24. The objects sought to be achieved by the

impugned standing orders are the preservation,

protection and improvement of livestock. Cows,

bulls, bullocks and calves of cows are no doubt the

most important cattle for the agricultural economy

of this country. Female buffaloes yield a large

quantity of milk and are, therefore, well looked after

and do not need as much protection as cows

yielding a small quantity of milk require. As draught

cattle male buffaloes are not half as useful as

bullocks. Sheep and goat give very little milk

compared to the cows and the female buffaloes,

and have practically no utility as draught animals.

These different categories of animals being

susceptible of classification into separate groups on

the basis of their usefulness to society, the butchers

who kill each category of animals may also be

placed in distinct classes according to the effect

produced on society by the carrying on of their

respective occupations. The butchers who --

slaughter cattle formed the well defined class based

on their occupation. That classification is based on

intelligible differentia and distinguishes them from

those who kill goats and sheep and this

differentiation has a close connection with the

object sought to be achieved by the impugned Act,

namely the preservation, protection and the

improvement of our livestock. The attainment of

these objectives may well necessitate that the

slaughterers of cattle should be dealt with

differently than the slaughterers of say, goats and

sheep. The standing orders, therefore, in our view,

adopt a classification based on sound and

intelligible basis and can quite clearly stand the test

laid down above.”

23.Another Constitution Bench of this Court, while dealing

with the provisions of the Legal Practitioners Act, 1879, a pre-

Page 26 26

constitution law, considered the correctness or effect of

restrictions on the rights of a Mukhtiar to act or plead before

the Civil Court, under Rule 2 of the Rules, framed under the

provisions of that Act by the High Court and held that Sections

9 and 11 of that Act would have to be read together. It would

be wrong to treat the mere right to practice conferred by

Section 9 of the Legal Practioners Act as disassociated from

the functions, powers and duties of Mukhtiar referred to in

Section 11 of that Act. The right to appear before a court

is controlled by these provisions. Primarily holding that --

Rule 2 as enacted by the High Court was not in excess of the

rule-making power under Section 11 of that Act, this Court

also held that the Mukhtiars cannot complain of any violation

of their fundamental right to practice the profession, to which

they have been enrolled under the provisions of that Act. In

other words, the challenge on the ground of inequality and

unreasonableness, both, were repelled by this Court. {Ref.

Devata Prasad Singh Chaudhuri & Ors. v. The Hon’ble the

Chief Justice and Judges of the Patna High Court [AIR 1962 SC

201]}.

24.There are certain legislations which restrict appearance of

Page 27 27

advocates before specialized or specific tribunals. These

kinds of restrictions upon the right of the lawyers to appear

before those tribunals have been challenged in the courts from

time to time. The courts have consistently taken the view

that limited restrictions are neither violative of the

fundamental rights, nor do they tantamount to denying the

equality before law in terms of Article 14 of the Constitution.

In the case of H.S. Srinivasa Raghavachar & Ors. v. State of

Karnataka [(1987) 2 SCC 692], this Court was primarily

concerned with the validity of Section 44(1) of the -Karnataka

Land Reforms Amendment Act, 1974 which was challenged on

the ground that it was ultra vires Articles 39(b) and 39(c) of

the Constitution and was destructive of the basic structure of

the Constitution. An ancillary question that fell for the

consideration of this Court was where sub-section (8) of

Section 48 of that Act, which prohibited legal practitioners

from appearing in such proceedings before the Tribunals, was

repugnant to Section 30 of the Advocates Act, and Section 14

of the Bar Council of India Act. The challenge was primarily

accepted by this Court on the ground that it was a case of lack

of legislative competence, inasmuch as the State Legislature

Page 28 28

was not competent to make a law repugnant to the laws made

by the Parliament pursuant to Entries 77 and 78 of List I of the

Seventh Schedule to the Constitution. This Court directed

that Section 48(8) of that Act would not be enforced against

the advocates to prevent them from appearing before the

Tribunal. This case, relied upon by the learned counsel for the

appellant, is completely different on facts and in law. In the

case in hand, the consistent position is that there is no

challenge to the legislative competence in amending Section

129(6) of the Customs Act. The challenge is limited to the

ground of its being ultra vires Articles -19(1)(g), 19(6) and 14

of the Constitution. Therefore, the counsel cannot draw any

advantage from that case.

25.In the case of Paradip Port Trust, Paradip v. Their Workmen

[AIR 1977 SC 36], this Court dealt with the right of the legal

practitioners to represent employers before the Industrial

Tribunal that too only with the consent of the opposite party and

leave of the Tribunal. The restriction was limited in its scope

and impact and this Court held that it was not violative of the

right of the legal practitioners as they will have to conform to

the conditions laid down in Section 36(4) of the Industrial

Page 29 29

Disputes Act, 1947.

26.Refuting contentions that this provision would be

repugnant to Section 30 of the Advocates Act, this Court held

that the Industrial Disputes Act was a special piece of legislation

with the aim of labour welfare and representation before the

adjudicative authorities therein has been specifically provided

for with a clear object in view.

27.In the case of Lingappa Pochamma Appelwar v. State of

Maharashtra & Anr. [(1985) 1 SCC 479], in somewhat similar

circumstances relating to the provisions of the Maharashtra --

Restoration of Lands to Scheduled Tribes Act, 1974, this Court

clearly rejected the contention that an advocate enrolled under

the Advocates Act, has an absolute right to appear before any of

the courts and tribunals in the country. Though at that time

Section 30 of the Advocates Act had not come into force, but

still the Court felt that the right of an advocate to practice after

being brought on the roll of the State Bar Council is, just what is

conferred upon him under the Bar Councils Act, 1926 and

therefore, Section 9(a) of the Maharashtra Restoration of Lands

to Scheduled Tribes Act which placed that restriction was not

Page 30 30

unconstitutional or impinging on the rights of the advocates to

practice. The Court also observed that it was well settled that

apart from under the provisions of Article 22 of the Constitution,

no litigant has a fundamental right to be represented by a

lawyer in any Court.

28.In the case of Indian Council of Legal Aid and Advice v. Bar

Council of India & Anr. [(1995) 1 SCC 732], this Court while

holding that a prohibition against a person, more than 45 years

of age being enrolled as an advocate was violative of Article 14

of the Constitution as being discriminatory and arbitrary, made

some observations with regard to duties and functions of the

advocates -and Bar Councils, for the dignity and purity of the

profession, which are worthy of being noticed and are

accordingly reproduced :

“3. It will be seen from the above provisions that

unless a person is enrolled as an advocate by a State

Bar Council, he shall have no right to practise in a

court of law or before any other Tribunal or authority.

Once a person fulfils the requirements of Section 24

for enrolment, he becomes entitled to be enrolled as

an advocate and on such enrolment he acquires a

right to practise as stated above. Having thus

acquired a right to practise he incurs certain

obligations in regard to his conduct as a member of

the noble profession. The Bar Councils are enjoined

with the duty to act as sentinels of professional

conduct and must ensure that the dignity and purity

of the profession are in no way undermined. Its job is

Page 31 31

to uphold the standards of professional conduct and

etiquette. Thus every State Bar Council and the Bar

Council of India has a public duty to perform,

namely, to ensure that the monopoly of practice

granted under the Act is not misused or abused by a

person who is enrolled as an advocate. The Bar

Councils have been created at the State level as well

as the Central level not only to protect the rights,

interests and privileges of its members but also to

protect the litigating public by ensuring that high and

noble traditions are maintained so that the purity

and dignity of the profession are not jeopardized. It is

generally believed that members of the legal

profession have certain social obligations, e.g., to

render “pro bono publico” service to the poor and

the underprivileged. Since the duty of a lawyer is to

assist the court in the administration of justice, the

practice of law has a public utility flavour -and,

therefore, he must strictly and scrupulously abide by

the Code of Conduct behaving the noble profession

and must not indulge in any activity which may tend

to lower the image of the profession in society. That

is why the functions of the Bar Council include the

laying down of standards of professional conduct and

etiquette which advocates must follow to maintain

the dignity and purity of the profession.”

29.An objective analysis of the above principles makes it clear

that except where the challenge is on the grounds of legislative

incompetence or the restriction imposed was ex facie

unreasonable, arbitrary and violative of Part III of the Constitution

of India, the restriction would be held to be valid and enforceable.

30.The next contention raised on behalf of the appellants before

us is that the entire restriction is based on an illogical presumption

Page 32 32

of likelihood of bias. The presumption of legal bias being without

any basis and ill-founded, the amendment itself is liable to be

declared ultra vires. This contention, again, does not carry any

weight. This argument is misconceived on facts and law, both. It

is not only the mischief of likelihood of bias which is sought to be

prevented by the amendment but the amendment, has a definite

-purpose and object to achieve which is in the larger public

interest. Such legislative attempt, not only to adhere to but to

enhance the values and dignity of the legal profession, would add

to the confidence of the common litigant in the administration of

justice and the performance of duties by the Tribunal.

31.For example, a person who is otherwise qualified to be

admitted as an advocate, but is either in full or part time service or

employment, or is engaged in any trade, business or profession,

shall not be admitted as an advocate, was a restriction imposed by

the Bar Council of State of Maharasthra and Goa. Upon challenge,

this Court had taken the view that under Article 19(1)(g), all

citizens have a right to practice any profession or carry on any

occupation, trade or business. The term ‘any profession’ may

include even plurality of professions. However, this is not an

absolute right and is subject to reasonable restrictions under

Page 33 33

Article 19(6). It cannot be gainsaid that litigants are also members

of general public and if in their interest, any rule imposes a

restriction on the entry to the legal profession and if such

restriction is founded to be reasonable, Article 19(1)(g) would not

get stultified {Dr. Haniraj L. Chulani v. Bar Council, State of

Maharashtra & Goa [(1996) 3 SCC 342]}.

-

32.In this very case, the Court also observed that these well-

established connotations and contours of the requirements of the

legal profession itself supply the necessary guidelines to the

concerned Bar Councils or Legislatures to frame Rules for

regulating the entry of the persons to the profession.

33.This judgment is relatable to the legal profession and we

have already noticed the judgments of this Court relating to other

professions. Imposition of restrictions is a concept inbuilt into the

enjoyment of fundamental rights, as no right can exist without a

corresponding reasonable restriction placed on it. When the

restrictions are placed upon the carrying on of a profession or to

ensure that the intent, object or purpose achieved thereby would

be enhancing the purity of public life, such object would certainly

be throttled if there arose a situation of conflict between private

Page 34 34

interest and public duty. The principle of private interest giving

way to public interest is a settled cannon, not only of

administrative jurisprudence, but of statutory interpretation as

well. Having regard to the prevalent values and conditions of the

profession, most of the legal practitioners would not stoop to

unhealthy practices or tactics but the Legislature, in its wisdom,

has considered it desirable to -eliminate any possibility of conflict

between the interest and duty and aimed at achieving this object

or purpose by prescribing the requisite restrictions. With the

development of law, the courts are expected to consider, in

contradistinction to private and public interest, the institutional

interest and expectations of the public at large from an institution.

These are the balancing tests which are applied by the courts even

in the process of interpretation or examining of the constitutional

validity of a provision.

34.Under the English Law, the genesis of bias has been

described as the perception that the court is free from bias, that it

is objectively impartial stems from the overworked aphorism of

Lord Hewart C.J. in R. v. Sussex Justices Ex. P. McCarthy [(1924) 1

KB 256 KBD at 259] wherein he said, “It is not merely of some

importance but is of fundamental importance that justice should

Page 35 35

not only be done but should manifestly and undoubtedly be seen

to be done.” However, later the courts there felt that too heavy a

reliance upon the Hewart aphorism in instances of alleged bias

produces the danger that the appearance of bias or injustice

becomes more important than the absence of actual bias, the

doing of justice itself. It is, therefore, of importance that perceived

bias is not too readily inferred, such as to negate the doing of

justice. In Porter v. Magill [(2002) 2 AC 357], the House of Lords

finally decided the proper test for finding perceived or apparent

bias, after judicial debate for over two decades, which displayed

the welcome interplay of judicial pronouncements within the

jurisdictions of the English common law, Scotland and Strasbourg

jurisprudence. The test is now whether the fair-minded observer,

having considered the facts, would consider that there was a

reasonable possibility that the tribunal was biased. [See Sir Louis

Blom, Q.C., ‘Bias, Malfunction in Judicial Decision-making’, (2009)

Public Law 199].

35.Bias must be shown to be present. Probability of bias,

possibility of bias and reasonable suspicion that bias might have

affected the decision are terms of different connotations. They

broadly fall under two categories, i.e., suspicion of bias and

Page 36 36

likelihood of bias. Likelihood of bias would be the possibility of bias

and bias which can be shown to be present, while suspicion of bias

would be the probability or reasonable suspicion of bias. The

former lead to vitiation of action, while the latter could hardly be

the foundation for further examination of action, with reference to

-the facts and circumstances of a given case. The correct test

would be to examine whether there appears to be a real danger of

bias or whether there is only a probability or even a preponderance

of probability of such bias, in the circumstances of a given case. If

it falls in the prior category, the decision would attract judicial

chastise but if it falls in the latter, it would hardly effect the

decision, much less adversely.

36.Harry Woolf, Jeffey Jowell and Andrew Le Sueur, in their

recent book De Smith’s Judicial Review (Sixth Edition) have

referred to the concept of ‘automatic disqualification’, that is,

where the element of bias is present and would lead to

disqualification on its own. This rule was invoked to invalidate the

composition of a disciplinary tribunal of the Council of the Inns of

Court, since one of the members of the tribunal had been a

member of the Professional Conduct and Complaints Committee of

the Bar Council (PCCC) which was the body responsible for the

Page 37 37

decision to prosecute a member of the Bar before that Tribunal. It

was held by the Visitors to the Inns of Court that each member of

the PCCC had a common interest in the prosecution and,

therefore, was acting as a judge in his or her own cause. The rule

was not free of -exceptions. It could even be applied with certain

flexibility. On the subject of judicial bias, a greater degree of

flexibility has to be applied in cases of automatic disqualification.

For example, where the public became aware that a senior

member of a firm was acting against one of the parties to the

litigation, but, on another matter, it was held that automatic

disqualification would not be necessary, as the connection

between the firm’s success in the case and its profits was

“tenuous” and the party had effectively waived the right to

challenge an adverse decision in the former litigation.

37.The element of bias by itself may not always necessarily

vitiate an action. The Court would have to examine the facts of a

given case. Reverting to the facts of the present case, despite

their absence from the object and reasons for the amendment of

Section 129(6) of the Customs Act it cannot be held that the

element of bias was presumptuous or without any basis or object.

It may be one of the relevant factors which probably would have

Page 38 38

weighed on the mind of the Legislature. When you have been a

member of a Tribunal over a long period, and other members have

been your co-members whether judicial or technical, it is difficult

to hold that there would be no possibility of bias or no real danger

of bias. Even -if we rule out this possibility, still, it will always be

better advised and in the institutional interest that restrictions are

enforced. Then alone will the mind of the litigant be free from a

lurking doubt of likelihood of bias and this would enhance the

image of the Tribunal. The restriction, as already discussed, leaves

the entire field of legal profession wide open for the appellants and

all persons situated alike except to practice before CESTAT.

38.Besides the possibility of bias, there is a legitimate

expectation on the part of a litigant before the Tribunal that there

shall not be any possibility of justice being denied or being not

done fairly. These are the concepts which are very difficult to be

defined and demarcated with precision. Some element of

uncertainty would be prevalent. There can be removal of doubts

to the facts of a given case that would help in determining matters

with somewhat greater uncertainty. The contention of the

petitioners that there has to be empirical data to suggest their

practice before the Tribunal resulted in instances of misdemeanor

Page 39 39

which would have propelled the respondents to insert such a

provision in the enactment, has rightly been rejected by the High

Court. It may not even be proper to introduce such amendments

with reference to any data. Suffice it -to note that these

amendments are primarily based upon public perception and

normal behaviour of an ordinary human being. It is difficult to

define cases where element of bias would affect the decision and

where it would not, by a precise line of distinction. Even in a

group, a person possessing a special knowledge may be in a

position to influence the group and his bias may operate in a

subtle manner.

39.The general principles of bias are equally applicable to our

administrative and civil jurisprudence. Members of the Tribunals,

called upon to try issues in judicial or quasi-judicial proceedings

should act judicially. Reasonable apprehension is equitable to

possible apprehension and, therefore, the test is whether the

litigant reasonably apprehends that bias is attributable to a

member of the Tribunal. Repelling the apprehension of bias in

administrative action, the Courts have taken the view that in the

case where a remote relationship existed, separated by six

degrees, which was the foundation of challenge of selection to a

Page 40 40

post of clerk in the Gram Panchayat High School, the challenge was

not sustainable. It is difficult to rule out the possibility of a

reasonable apprehension in the minds of the litigants who

approach the -Tribunal for justice, if the reasonable restriction

introduced in Section 129(6) of the Customs Act is not enforced.

Reference can be made to the judgments of this Court in the case

of Manak Lal v. Dr. Prem Chand [AIR 1957 SC 425] and

Rasmiranjan Das v. Sarojkanta Behera & Ors.[(2000) 10 SCC 502].

40.This Court in the case of Kumaon Mandal Vikas Nigam Ltd. v.

Girja Shankar Pant and Ors. [(2001) 1 SCC 182], having regard to

the changing structure of the society, stated that modernization of

the society with the passage of time had its due impact on the

concept of bias as well. The courts have applied the tests of real

likelihood and reasonable suspicion. These doctrines were

discussed in the case of S. Parthasarathi v. State of Andhra

Pradesh [(1974) 3 SCC 459]. The Court found that ‘real likelihood’

and ‘reasonable suspicion’ were terms really inconsistent with

each other and the Court must make a determination, on the basis

of the whole evidence before it, whether a reasonable man would,

in the circumstance, infer that there is real likelihood of bias or not.

The Court has to examine the matter from the view point of the

Page 41 41

people. The term ‘bias’ is used to denote a departure from the

standing of even handed justice. After discussing this law,

another Bench of -this Court in the case of State of Punjab v. V.K.

Khanna [(2001) 2 SCC 330], finally held as under:-

“8. The test, therefore, is as to whether there

is a mere apprehension of bias or there is a real

danger of bias and it is on this score that the

surrounding circumstances must and ought to be

collated and necessary conclusion drawn therefrom.

In the event, however, the conclusion is otherwise

that there is existing a real danger of bias

administrative action cannot be sustained. If on the

other hand allegations pertain to rather fanciful

apprehension in administrative action, question of

declaring them to be unsustainable on the basis

therefor, would not arise.”

41.The word ‘bias’ in popular English parlance stands included

within the attributes and broader purview of the word ‘malice’,

which in general connotation, means and implies ‘spite’ or ‘ill will’.

It is also now a well settled proposition that existence of the

element of ‘bias’ is to be inferred as per the standard and

comprehension of a reasonable man. The bias may also be

malicious act having some element of intention without just cause

or excuse. In case of malice or ill will, it may be an actual act

conveying negativity but the element of bias could be apparent or

reasonably seen without -any negative result and could form part

Page 42 42

of a general public perception.

42.Now, we shall proceed to examine the merits of the

contention raised that the provisions of Section 129(6) of the

Customs Act cannot be given effect to retrospectively. The

argument advanced is that the appellants were enrolled as

advocates when the provisions of Section 129(6) were not on the

statute book. After ceasing to be members of the Tribunal and

starting their practice as advocates, such a bar was not operative.

Now, after the lapse of so many years, their right to practice

before such Tribunals cannot be taken away and to that extent, in

any case, the provisions of Section 129(6) cannot be made

retrospective.

43.As already noticed by us above, the right to practice law is a

statutory right. The statutory right itself is restricted one. It is

controlled by the provisions of the Advocates Act, 1961 as well as

the rules framed by the Bar Council in that Act. A statutory right

cannot be placed at a higher pedestal to a fundamental right.

Even a fundamental right is subject to restriction and control. At

the cost of repetition, we may notice that it is not possible to

imagine a -right without restriction and controls in the present

society. When the appellants were enrolled as advocates as well

Page 43 43

as when they started practicing as advocates, their right was

subject to the limitations under any applicable Act or under the

constitutional limitations, as the case may be. One must clearly

understand a distinction between a law being enforced

retrospectively and a law that operates retroactively. The

restriction in the present case is a clear example where the right

to practice before a limited forum is being taken away in presenti

while leaving all other forums open for practice by the appellants.

Though such a restriction may have the effect of relating back to a

date prior to the presenti. In that sense, the law stricto sensu is

not retrospective, but would be retroactive. It is not for the Court

to interfere with the implementation of a restriction, which is

otherwise valid in law, only on the ground that it has the effect of

restricting the rights of the people who attain that status prior to

the introduction of the restriction. It is certainly not a case of

settled or vested rights, which are incapable of being interfered

with. It is a settled canon of law that the rights are subject to

restrictions and the restrictions, if reasonable, are subject to

judicial review of a very limited scope.

-

44.We do not find any reason to accept the submission that

Page 44 44

enforcement of the restriction retroactively would be

impermissible, particularly in the facts and circumstances of the

present case.

45.We may refer to the case of R. v. Inhabitants of St. Mary,

Whitechapel [(1881) 12 QB 149] whereby under Section 2 of the

Poor Removal Act, 1846, ‘No woman residing in any parish with her

husband at the time of his death shall be removed… from such

parish, for twelve calendar months after his death, if she so long

continue a widow.’ In this case, a widow was sought to be removed

within such period of 12 months, on the grounds that her husband

had died before the coming into force of that Act. The question

was whether that provision applied retrospectively. Lord Denman,

C.J, held that ‘the statute is, in its direct operation, prospective, as

it relates to future removals only and that it is not properly called

a retrospective statute because a part of the requisites for its

action is drawn from its time antecedent to its passing’. Thus, the

provision was held not to be retrospective.

46.Examined the case of the appellants from this angle, it would

mean that the law is not at all retrospective even though the --

retirement or date of ceasing to be a member of the Tribunal may

have been on a date anterior to the date of passing of the law.

Page 45 45

47.We may also notice that the restriction is not punitive, in that

sense, but is merely a criterion for eligibility for continuing to

practice law before the Tribunal.

48.Earlier, the nature of law, as substantive or procedural, was

taken as one of the determinative factors for judging the

retrospective operation of a statute. However, with the

development of law, this distinction has become finer and of less

significance. Justice G.P. Singh, in his Principles of Statutory

Interpretation (12

th

Edition, 2010) has stated that the classification

of a statute, as either a substantive or procedural law, does not

necessarily determine whether it may have retrospective

operation. For example, a statute of limitation is generally

regarded as procedural, but its application to a past cause of

action has the effect of reviving or extinguishing a right to sue.

Such an operation cannot be said to be procedural. It has also

been noted that the rule of retrospective construction is not

applicable merely because a part of the requisites for its action is

drawn from a time antecedent to the -passing of the relevant law.

For these reasons, the rule against retrospectivity has also been

stated, in recent years, to avoid the classification of statutes into

substantive and procedural and the usage of words like ‘existing’

Page 46 46

or ‘vested’. Referring to a judgment of the Australian High Court

in the case of Maxwell v. Murphy [(1957) 96 CLR 261], it is

recorded as follows :

“One such formulation by Dixon C.J. is as follows :

‘The general rule of the common law is that a

statute changing the law ought not, unless the

intention appears with reasonable certainty, to be

understood as applying to facts or events that have

already occurred in such a way as to confer or

impose or otherwise affect rights or liabilities which

the law had defined by reference to the past

events. But given rights and liabilities fixed by

reference to the past facts, matters or events, the

law appointing or regulating the manner in which

they are to be enforced or their enjoyment is to be

secured by judicial remedy is not within the

application of such a presumption’.”

49.In such matters, in judiciously examining the question of

retrospectivity or otherwise, the relevant considerations include

the circumstances in which legislation was created and the test of

fairness. The principles of statutory interpretation have

expanded. With the development of law, it is desirable that the

Courts should -apply the latest tools of interpretation to arrive at a

more meaningful and definite conclusion. The doctrine of fairness

has also been applied by this Court in the case of Vijay v. State of

Maharashtra & Ors.[(2006) 6 SCC 289]. A restriction was

introduced providing that a person shall not be a member of a

Page 47 47

Panchayat or continue as such, if he has been elected as

Councilor of Zila Parishad or as a member of the Panchayat

Samiti. This restriction was held to be retrospective and

applicable to the existing members of the Panchayat also.

Applying the rule of literal construction, this Court held that when

a literal reading of the provision giving retrospective effect does

not produce absurdity or anomaly, the same would not be

construed only prospective. This was further strengthened by the

application of the rule of fairness.

50.In the present case, the restriction would be applied

uniformly to all the practicing advocates as well as to the

advocates who would join the profession in future and would

achieve the object of the Customs Act without leading to any

absurd results. On the contrary, its uniform application would

achieve fair results without really visiting any serious prejudice

upon the class of the advocates -who were earlier the members

of the Tribunal as it remains open to them to practice in other

tribunals, forums and courts. If an exception was carved out in

their favour, it would lead to an anomaly as well as an absurd

situation frustrating the very purpose and object of Section

129(6) of the Act.

Page 48 48

51.Still in another case titled Dilip v. Mohd. Azizul Haq & Anr.

[(2000) 3 SCC 607], this Court, while dealing with the question

whether the amendment in the Rent Control Order, which had

earlier only covered ‘houses’, and was amended to encompass

‘premises’ could be allowed to agreements entered into, prior in

time, clearly held that the provision came into force when the

appeal was still pending and, though the provision is prospective

in force, it has retroactive effect. This provision merely provides

for a limitation to be imposed for the future, which in no way

affects anything done by a party in the past and the statutes

providing for new remedies or new manners for enforcement of

the existing rights will apply to future as well as past causes of

action. This Court also held that the presumption against

retrospective legislation does not necessarily apply to an

enactment merely because a part of the -requisites for its action

are drawn from a time antecedent to its passing.

52. In light of these principles, the provisions of Section 129(6)

of the Customs Act and its operation cannot be faulted with.

Another half-hearted attempt was made to raise a contention that

the appellants can continue to appear before the Tribunal as they

are permitted to do so in terms of Section 146A of the Customs

Page 49 49

Act, despite the provisions of Section 129(6) of the Customs Act.

We are unable to find any merit in this contention as well. The

provisions of Section 129(6) of the Customs Act are specific and

both these provisions have to be construed harmoniously. We

find nothing contradictory in these three provisions. Section

146(2)(c) of the Customs Act refers to the appearance by a legal

practitioner who is entitled to practice as such in accordance with

law. Section 129(6) places a restriction, which is reasonable and

valid restriction, as held by us above. Thus, the provisions of

Section 146A of the Act would have to be read in conjunction with

and harmoniously to Section 129(6) of the Customs Act and the

person who earns a disqualification under this provision cannot

derive any extra benefit -contrary to Section 129(6) of the

Customs Act from the reading of Section 146A of the Customs

Act. Thus, we have no hesitation in rejecting this contention as

well.

53.For the reasons afore-recorded, we dismiss all the aforesaid

appeals, however, without any order as to costs.

…………………………… .,J.

[A.K. Patnaik]

Page 50 50

…………………………… .,J.

[Swatanter Kumar]

New Delhi;

March 15, 2012