REPORTABLE
1
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 1st November, 1990, the appellant was selected as a Member
(Technical) in the Customs, Excise and Gold (Control) Appellate
-Tribunal (CEGAT). The appellant demitted his office as Member
(Technical) of CEGAT on 7th March, 1993. As he was a law
graduate, he was enrolled as an advocate with the Bar Council of
India on 18th March, 1993. The CEGAT was replaced by the
Central Excise and Service Tax Appellate Tribunal (for short, `the
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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 9th July,
2007, passed an order holding that the appellant or the persons
similarly situated, were not entitled to appear before it in view of
the bar contained in Section 129(6) of the Customs Act. In the
meanwhile, the 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 13th April, 2009, hence,
giving rise to the present appeals.
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
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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 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
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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 :
"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
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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;
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(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--
(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-
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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., 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
8
of India, the security of the State, free 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 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 :
9
-
`......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
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.
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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).
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
11
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 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
pretendo void. The word "fundamental" in Article 37 of the
Constitution also means basic or essential, but it is used in the
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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 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 alleging 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
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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
rule for the advocates and integration of the Bar into 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
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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
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
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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
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
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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 :
"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 14th 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,
17
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 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
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unable to hold that the restriction imposed under Section 129(6)
of the Act is unreasonable or ultra vires. Firstly, it is not an
absolute restriction. It is a partial restriction to the extent that
the persons who have held the office of the 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 mischief
sought to be avoided and the object aimed to be achieved.
19
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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 maintain standards of the medical education which
was the very object of enacting the Indian Medical Council Act.
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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 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
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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 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
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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 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
23
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 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
24
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-
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
25
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
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-
26
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 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
27
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 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
28
conferred upon him under the Bar Councils Act, 1926 and
therefore, Section 9(a) of the Maharashtra Restoration of Lands to
Scheduled Tribes Act which placed that restriction was not
unconstitutional or 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
29
Bar Councils are enjoined with the duty to act as
sentinels of professional conduct and must ensure
that the dignity and purity of the profession are in no
way undermined. Its job is to uphold the standards of
professional conduct and etiquette. Thus every State
Bar 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
30
us is that the entire restriction is based on an illogical presumption
of likelihood of bias. The presumption of legal bias being without
any basis and ill-founded, the amendment itself is liable to be
declared ultra vires. This contention, again, does not carry any
weight. This argument is misconceived on facts 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 Article 19(6). It cannot be
31
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 interest
and public duty. The principle of private interest giving way to
public interest is a settled cannon, not only of administrative
32
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 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
33
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
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
34
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 castecism 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 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
35
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 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
36
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 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
37
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 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
38
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 people. The term `bias' is used to denote a
departure from the standing of even ended 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
39
`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 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
40
of repetition, we may notice that it is not possible to imagine a -right
without restriction and controls in the present society. When the
appellants were enrolled as advocates as well as when they started
practicing as advocates, their right was subject to the limitations
under any applicable Act or under the constitutional limitations, as
the 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.
-
41
44. We do not find any reason to accept the submission that
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.
47. We may also notice that the restriction is not punitive, in that
42
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 (12th
Edition, 2010) has stated that the classification of a statute, as
either a substantive or procedural law, does not necessarily
determine whether it may have 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' 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 :
43
"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 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
44
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.
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
45
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 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)
46
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]
..................................,J.
[Swatanter Kumar]
New Delhi;
March 15, 2012
