Appeal No208 of 1958
Appeal by special leave from the order dated January 29 1958 of the Commissioner of Income taxDelhi  Rajasthan at New Delhi under section 8A2 of the 532 Taxation on Income Investigation Commission Act 1947
Harnam Singh and Sadhu Singh for the appellant
M C Setalvad Attorney General for India C K Daphtary Solicitor General of India B Sen and R H Dhebar for the respondents
A C Mitra and B P Maheshwari for the interveners
November 19
The Judgment of Das C J and Kapur J was delivered by Das C J Bhagwati section K Das and Subba Rao JJ delivered separate judgments
DAS C J
This appeal by special leave filed by one Shri Besheshar Nath hereinafter referred to as the assessee  calls in question the validity of a settlement made under section 8A of the Taxation on Income Investigation Commission Act 1947 30 of 1947 hereinafter referred to as  the Investigation Act 
This Act which came into force on May 1 1947 by a notification issued by the Central Government under section 1 3 thereof has had a short but chequered career as will appear from the facts hereinafter stated
In order to appreciate the several questions canvassed before us it is necessary to refer to the provisions of the impugned Act
Section 3 authorised the Central Government to constitute an Income Tax Investigation Commission hereinafter called the Commission and imposed on it the following duties  a to investigate and report to the Central Government on all matters relating to taxation on income with particular reference to the extent to which the existing law relating to and procedure for the assessment and collection of such taxation is adequate to prevent the evasion thereof b to investigate in accordance with the provisions of this Act any case or points in a case referred to it under section 5 and make a report thereon including such interim report  s as the Commission may think fit to the Central Government in respect of all or any of the assessments made in relation to the case 533 before the date of its report or interim report as the case may be
 We may skip over section 4 which dealt with the composition of the Commission
Section 5 which is of importance was as follows  5
1 The Central Government may at any time  before the 30th day of June 1948 refer to the Commission for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a person has to a substantial extent evaded payment of taxation on income together with such material as may be available in support of such belief and may at any time before the 30th day of June 1948 apply to the Commission for the withdrawal of any case or points in a case thus referred and if the Commission approves of the withdrawal no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn
2 The Commission may after examining the material submitted by the Central Government with reference to any case or points in a case and making such investigation as it considers necessary report to the Central Government that in its opinion further investigation is not likely to reveal any substantial evasion of taxation on income and on such report being made the investigation shall be deemed to be closed
3 No reference made by the Central Government under sub section 1 at any time before the 30th day of June 1948 shall be called in question nor shall the sufficiency of the material on which such a reference has been made be investigated in any manner by any Court
4 If in the course of investigation into any case or points in a case referred to it under sub section 1 the Commission has reason to believe athat some person other than the person whose case is being investigated has evaded payment of taxation on income or b that some points other than those referred to 534 it by the Central Government in respect of any case also require investigation it may make a report to the Central Government stating its reasons for such belief and on receipt of such report the Central Government shall notwithstanding anything contained in sub section 1 forthwith refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report
 The date  30th day of June 1948  appearing in sub sections
1 and 3 was by Act 49 of 1948 substituted by the words  1st day of September 1948 
Section 6 set out the various powers conferred on the Commission and section 7 prescribed the procedure of the Comission
It is not necessary to set out the various powers and the details of the procedure in extenso and it will suffice to say that they have been considered by this Court and pronounced to be much more drastic and harsh than the powers to be exercised and the procedure to be followed by the income tax authorities acting under the provisions of the Indian Income Tax Act 1922
The relevant portions of section 8 ran as follows  8
1 Save as otherwise provided in this Act the materials brought on record shall be considered by all the three members of the Commission sitting together and the report of the Commission shall be in accordance with the opinion of the majority
2 After considering the report tile Central Government shall by order in writing direct that such proceedings as it thinks fit under the Indian Income Tax Act 1922 the Excess Profits Tax Act 1940 or any other law shall be taken against the person to whose case the report relates in respect of the income of any period commencing after the 31st day of December 1938 and upon such a direction being given such proceedings may be taken and completed under the appropriate law notwithstanding the restrictions contained in section 34 of the Indian Income Tax Act 1922 or section 15 of the Excess Profits Tax Act 1940 or any other law and notwithstanding any lapse of time or any decision to a different effect given 535 in the case by any Income tax authority or Income Tax Appellate Tribunal
3          4 In all assessment or re assessment proceedings taken in pursuance of a direction under sub section  2 the findings recorded by the Commission on the case or on the points referred to it shall subject to the provisions of sub sections 5 and 6 be final but no proceedings taken in pursuance of such direction shall be a bar to the initiation of proceedings under section 34 of the Indian Income Tax Act 1922
5          6          7 Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force any evidence in the case admitted before the Commission or an authorised official shall be admissible in evidence in any proceedings directed to be taken under sub section 2
8         
Section 9 barred the jurisdiction of Courts to call in question any act or proceeding of the Commission or any authorised official appointed under section 6
Section 10 gave power to the Central Government to make rules by notification in the official gazette
On July 22 1948 the case of the assessee was referred to the Commission in the following terms  Ministry of Finance Revenue Division New Delhi the 22nd July 1948
Under section 5 1 of the Taxation on Income Investigation Commission Act 1947 the cases of the following persons are hereby referred to the Investigation Commission for investigation and report as the Central Government has prima facie reasons for believing that each such person has either alone or in combination with the other persons mentioned below evaded payment of taxation on income to a substantial 536 extent
The material available in support of such belief accompanies
No Name EP
8291 Beshashar Nath and Co 8292 Lala Beshashar Nath
Sd Pyare Lal Deputy Secretary Ministry of Finance Revenue Division
The SecretaryIncome tax Investigation Commission New Delhi
 It is not necessary to set out the annexures that accompanied this Orders It appears that the total wealth statement of the assessee was filed on November 10 1948 and was forwarded to the authorised official
It also appears that from January 8 1949 to October 14 1949 the authorised official was engaged in the collection of assessment records of the assessee from the territorial income tax offices and of materials from the Civil Supplies Directorate regarding the assessee
In the meantime by a 33 of Act 67 of 1949 the following section was inserted in the Act as section 8A  8A Settlement of cases under investigation1 Where any Person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him the Commission shall if it is of opinion that the terms of the settlement contained in the application may be approved refer the matter to the Central Government and if the Central Government accepts the terms of such settlement the Commission shall have the terms thereof recorded and thereupon the investigation in so far as it relates to matters covered by such settlement shall be deemed to be closed
2 For the purpose of enforcing the terms of any settlement arrived at in pursuance of sub section 1 537 the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act 1922 XI of 1922 the Excess Profits Tax Act 1940 XV of 1940 or any other law may be taken against the person to whom the settlement relates and in particular the provisions of the second proviso to clause a of sub section 5 of section 23 section 24B the proviso to sub section 2 of section 25A the proviso to subjection 2 of section 26 and sections 44 and 46 of the Indian Income tax Act 1922 shall be applicable to the recovery of any sum specified in such settlement by the Income Tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrear of income tax within the meaning of those provisions
3 Subject to the provisions of sub section 6 of section 8 any settlement arrived at under this section shall be conclusive as to the matters stated therein and no person whose case has been so settled be entitled to re open in any proceeding for the recovery of any sum under this section or in any subsequent assessment or reassessment proceeding relating to taxation on income or in any other proceeding before any Court or other authority any matter which forms part of such settlement
4 Where a settlement has been accepted by Government under sub section 1 no proceedings under section 34 of the Indian Income Tax Act 1922 XI of 1922 or under section 15 of the Excess Profits Tax Act 1940 XV of 1940 shall be initiated in respect of the items of income covered by the settlement unless the initiation of such proceedings is expressly allowed by the terms of the settlement On July 5 1949 the total wealth statement was received back from the authorised official
Our Constitution came into force on January 26 1950
The order sheet shows that the authorised official on May 26 1950 issued a notice to the assessee fixing the hearing for June 10 1950 which indicates that the authorised official was proceeding with the investigation set in motion by the reference of the assessee s 68 538 case to the Commission
The assessee appears to have attended on June 6 1950 with an application for extension of time which apparently was given
On September 30 1950 the assessee supplied certain statements of his firm
The entry in the order sheet against the date October 31 1950 shows that the assessee asked for further extension of time
There appears to be a hiatus of about 3 years and evidently nothing was done until June 9 1953 when the authorised official fixed the hearing of the case on June 15 1953
The authorised official submitted his interim report to the Commission on June 9 1953
The assessee was examined on October 9 10 and 13 1953 and the authorised official submitted his final report on October 19 1953
On January 30 1954 notice was issued to the assessee to appear before the Commission on February 15 1954
Presumably to get ready for the hearing the assessee on February 5 1954 asked for inspection of certain assessment orders concerning his case  for the return of his lease deed filed by him and a copy of the statement of one L Kalidas and for production of certain documents before the Commission
The hearing which had been fixed for February 15 1954 was adjourned till March 4 1954
Witness Kalidas was examined on March 4
On March 29 1954 the assessee asked for a copy of the deposition given by the witness Durgadas before the Commission
After the evidence was closed notice was issued to the assessee on May 1 1954 asking him to appear before the Commission on May 19 1954
On that date the assessee attended arguments were heard and orders were reserved
Learned counsel for the assessee states that at the close of the arguments on May 19 1954 the Commission announced its view that the income profits and gains that had escaped assessment in the hands of the assessee for the period beginning with April 1 1939 and ending March 31 1947 were the sum of Rs 447915 that the Commission also threw a hint that should the assessee accept the said finding he would be granted the benefit of a settlement on the lower concessional basis of
payment of 75 and a small penalty of Rs 14064 539 other alternative than to make the best of the bad job by proposing a settlement under section 8A offering to pay Rs 350000 by way of tax and penalty
This sequence of events is amply borne out by paragraphs 3 and 4 of the settlement application filed by the assessee on May 20 1954 a copy of which has been produced before us by the respondents
The Commission on May 24 1954 made a report under section 8A 1 to the Central Government that it was of opinion that the terms of settlement contained in the application might be approved
The Central Government having accepted the proposed settlement the Commission had the terms thereof recorded
The Central Government by its Order C No 74 9 IT 54 made on July 5 1954 under section 8A 2 of the Investigation Act directed that demand notice in accordance with the said terms be served immediately by the Income Tax Officer and that all such other proceedings under the Indian Income Tax Act or other law as may be necessary be taken with a view to enforce the payment of the demand and that the entire sum of Rs 350000 be demanded in one sum
It appears however that the assessee was allowed to make payments by instalments of Rs 5000 per month
In the meantime on May 28 1954 this Court delivered judgment in Suraj Mall Mohta and Co vs A V Visvanatha Sastri 1
In that case in the course of investigation of the case of Messrs Jute and Gunny Brokers Ltd which had been referred to the Commission under section 5 1 of the Investigation Act it was alleged to have been discovered by the Commission that Suraj Mall Mohta and Co had made large profits which they had not disclosed and had thus evaded taxation
A report to that effect having been made on August 28 1953 by the Commission to the Central Government under section 5 4 of the Investigation Act the Central Government on September 9 1953 referred the case against Suraj Mall Mohta and Co to the Commission under the provisions of section 5 4
On September 15 1953 the Commission notified Suraj Mall 1955 1 SCR448 540 Mohta and Co that their cases had been referred for investigation and called upon them to furnish certain materials details of which were set out in annexure to the petition
On April 12 1954 Suraj Mall Mohta and Co filed a petition under article 32 of the Constitution asking for an appropriate writ restraining the Commission from taking any action on the ground that the provisions of the Investigation Act had become void being discriminatory in character
By that judgment this Court held that both section 34 of the Indian Income Tax Act 1922 as it then stood and sub section
4 of section 5 of the Investigation Act dealt with persons who had similar characteristics of being persons who had not truly disclosed their income and had evaded payment of tax on their income but that as the procedure prescribed by the Investigation Act was substantially more prejudicial than the procedure under the Indian Income Tax Act 1922 sub section
4 of section 5 and the procedure prescribed by the Investigation Act in so far as it affected persons proceeded against under that sub section was a piece of discriminatory legislation which offended the provisions of article 14 of the Constitution and was therefore void and unenforceable
Sub section 4 of section 5 of the Investigation Act having been declared void Parliament passed the Indian Income Tax Amendment Act 33 of 1954 amending section 34 of the Indian Income Tax Act 1922
Paradoxical as it may seem the result of this amendment was that persons who originally fell only within the ambit of section 5 1 of the Investigation Act and formed a distinct class of substantial tax evaders also came within the amended section 34 of the Indian Income Tax Act 1922
The position after the amendment therefore was that the Income Tax Officers could pick out some of these persons and refer their cases under section 5 1 of the Investi gation Act and thereby subject them to the drastic and harsh procedure of that Act while they could deal with other persons similarly situate under section 34 as amended and apply to them the comparatively more beneficial procedure laid down in the Indian Income Tax Act 1922
Promptly several applications were 541 made under article 32 of the Constitution complaining that after the amendment of section 34 of the Indian Income Tax Act section 5 1 of the Investigation Act became discriminatory in that the persons falling within it could be dealt with under the drastic prejudicial and harsh procedure prescribed by the Investigation Act while other persons similarly situate and belonging to the same category could at the whim or pleasure of the Income Tax authorities be proceeded against under the more beneficial procedure prescribed under the Indian Income Tax Act
All those applications were disposed of by a common judgment reported as Shree Meenakshi Mills Ltd vs Sri A V Visvanatha Sastri 1 This Court held that section 34 of the Income Tax Act as amended by the Indian Income Tax Amendment Act 1954 33 of 1954 operated on the same field as section 5 1 of the Investigation Act and therefore section 5 1 had become void and unenforceable as the procedure applied to persons dealt with thereunder became discriminatory in character
It should be noted that in none of those petitions disposed of by that judgment had any assessment been made under the Investigation Act and this Court only prohibited further proceedings before the Commission under the Investigation Act
The assessee appellant now before us who had entered into a settlement under section 8 of the Investigation Act and had been assessed in accordance with the terms of the settlement continued to pay the tax by monthly instalments of Rs 5000 as before
Finally on December 20 1955 came the decision of this Court in M CT
Muthiah vs The Commissioner of Income Tax Madras 2
In that case the Central Government had under section 5 1 of the Investigation Act referred the case to the Commission
The Commission after holding an enquiry recorded its findings and held that an aggregate sum of Rs 1007322 4 3 represented the undisclosed income during the period under investigation
The Commission having submitted its report to the Central Government the latter acting under section 8 2 of the Investigation Act directed that appropriate action under the 1 2  542 Indian Income Tax Act 1922 be taken against that assessee with a view to assess or re assess the income which had escaped assessment for the period 1940 41 to 1948 49
The Income Tax Officer accordingly issued notices and made the re assessment for the years 1940 41 1941 42 and 1943 44 to 1948 49 based upon the finding of the Commission which was treated as final and conclusive
These assessment orders were served on that assessee
There was however no re
assessment order for the year 1942 43
In regard to the assessment orders which had been served the assessee concerned applied to the Commissioner of Income Tax under section 8 5 of the Investigation Act for reference to the High Court on questions of law arising out of those re assessment orders
During the pendency of those proceedings the assessee in that case on December 6 1954 filed a petition contending that the provisions of the Investigation Act were illegal ultra vires and unconstitutional
The majority of this Court held that different persons though falling under the same class or category of substantial evaders of income
tax were being subjected to different procedures one a summary and drastic procedure and the other the normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed by the Investigation Act and therefore the assessments made under section 8 2 were void and unenforceable
That was a case of assessment under section 8 2 in invitum after an investigation under the Investigation Act
The assessee appellant before us who had at the end of the investigation entered into a settlement and been assessed in accordance with the terms of such settlement however went on making payments in discharge of the balance due under the terms of settlement right up to September 8 1957 when he made the last payment of Us
8000 bringing the aggregate payment up to Rs 128000
In the meantime the Income Tax Officer had sent a certificate requesting the Collector of Delhi for the recovery of the balance due by the assessee under the settlement
In execution of that certificate some of 543 the properties belonging to the assessee situate in Dharamsalla and Hissar were attached
On December 27 1957 the assessee made an application to the Income Tax Commissioner
After pointing out that between July 5 1954 and December 27 1957 the petitioner had paid in all Rs 128000 towards the  discharge of his liability under the settlement and referring to the decisions of this Court in suraj Mall Mohta s case 1 and Muthiah s case 2 the assessee submitted that the settlement under a 8A of the Investigation Act had no force and did not bind the petitio ner and that the settlement had been made under the pressure of the situation and in view of the coercive machinery of the Investigation Act and that from either point of view the settlement was not binding
His contention was that when section 51 of the Investigation Act had been held unconstitutional the settlement under section 8A could not be enforced for the foundation of the proceedings under section 8A was the reference under section 51 and the foundation having crumbled down the superstructure must fall with it
Under the circumstances the assessee submitted that the attached properties be released and the amount already recovered under the settlement be refunded
On January 29 1958 the Income Tax Commissioner sent the following communication to the assessee No L 228154 5517590 Office of the Commissioner Income Tax Delhi and Rajasthan New Delhi
Dated New Delhi the 29th January 1958
Shri Besheshar Nath 9 Barakhamba Road New Delhi
Dear Sir Sub Taxation on Income Investigation Commission Act 1947 Order us 8A2 Your petition dated 27th December 1957
With reference to your petition dated 27th December 1957 regarding the settlement arrived at 1  2  544 under section 8A2 of the Taxation on Income Investigation Commission Act 1947 I am to inform you that the settlement is valid and binding on you
You are therefore requested to make good arrears of instalments which you have not paid recently by 5th February 1958 and also to continue making the payments in accordance with the instalments scheme agreed to failing which the recovery proceedings will be vigorously pursued through the usual recovery channels
Your s faithfully Sd section K Gupta Commissioner of Income tax Delhi  Rajasthan New Delhi
Being aggrieved by the above decision the assessee thereupon moved this Court and obtained special leave to appeal against that order
The appeal has now come up for final disposal before us
It may be mentioned here that as the respondents are anxious to have the matters of controversy raised in this appeal decided and set at rest by a decision of this Court the respondents for the purposes of this appeal have not insisted on their objection that an appeal does not lie under article 136 of the Constitution against an order of the Commissioner of Income Tax
Learned counsel for the assessee also has not pressed his claim for refund of the amounts already paid and has pressed the appeal regarding the balance that remains to be paid under the settlement which is characterised as invalid
Model Knitting Industries Ltd which has a case pending in the High Court of Calcutta where the same questions as are in issue in the appeal before us are also in issue has been
permitted to intervene and we have heard counsel appearing for that intervener
In view of the three decisions referred to above learned Attorney General does not seriously contend that the powers conferred on the Commission by section 6 and the procedure laid down by section 7 of the Investigation Act are not discriminatory but what he urges is that none of the said decisions has held that section 51 is 545 wholly void and inoperative
He says that section 51 only authorises the Central Government to refer certain cases to the Commission
Upon such a reference two lines of procedure are clearly indicated by the Investigation Act namely 1 that an investigation may be held in invitum following the procedure prescribed and exercising the powers conferred by the lnvestigation Act and 2 that a settlement may be made under section 8A If the first procedure is followed and an assessment is made under section 82 such assessment will undoubtedly be invalid as has been held in Muthiah s case 1 but if on a case being referred the settlement procedure is followed then the consequential order of assessment under section 8A cannot be questioned
We are unable to accept this line of argument as permissible in view of the provisions of the Investigation Act
It will be recalled that when the case of the assessee was referred to the Commission under section 51 on July 22 1948 there was no provision for settlement in the Act at all
Therefore that reference when it was made consigned the assessee to the only procedure of investigation that was then prescribed by the Act
In the next place it should be remembered that after section 8A was added in the Investigation Act by section 33 of Act 67 of 1949 an authorised official was appointed under section 63 to investigate the affairs of the assessee and to examine the books and to interrogate any person or obtain any statement from any person and under sub section
4 the authorised official was empowered to exercise the same powers as had been vested in the Commission under sub sections
1 and 2 of section 6
Further by its own terms section 8A made it clear that the person concerned in any case referred to the Commission for investigation might apply to the Commission at any time during such investigation to have the case settled
Therefore this provision for settlement was an integral part of the entire investigation procedure
It was not a separate or independent procedure apart from the investigation procedure
It is true that there was nothing to prevent the assessee from straightaway 1  69 546 making a proposal for settlement before any actual step towards investigation was taken by the Income Tax authorities but before the Commission could refer the proposal for settlement to the Central Government it had to be satisfied that the terms of settlement contained in the application were such as might be approved
For the purpose of satisfying itself the Commission had obviously to go into the facts either by itself or through an authorised official and to consider the materials collected by the authorised official and in the process of doing so had to hold an investigation of some sort and that investigation had neces sarily to be made in accordance with the procedure prescribed by the Investigation Act itself
It is therefore not correct to say that there could be a pro ceeding for settlement without any investigation at all
In our opinion section 8A did not provide for a separate procedure at all
When a case was referred under section 51 it was really for investigation and a settlement was something which could crop up in the process of that investigation just as in the course of a suit parties may arrive at some compromise
In recording the compromise and passing a judgment in accordance with the compromise thereof the court exercises the same jurisdiction as it exercises in entertaining and disposing of the suit itself
Likewise in entertaining a proposal for settlement the Commission exercised its jurisdiction of investigation under section 5 followed the procedure prescribed by section 7 and exercised all its powers under section 6
As already stated the language of s8A itself shows that a settlement can be proposed only during such investigation
In our judgment therefore the contention of the learned Attorney General that the Investigation Act prescribed two procedures is not well founded
Learned Attorney General then points out that the Investigation Act was a pre Constitution Act and that before the commencement of the Constitution when there was no such thing as a fundamental right its provisions could not be questioned however discriminatory the procedure may have been
He urges that after the commencement of the Constitution the 547 assessee has not been subjected to the coercive procedure laid down by the Investigation Act but voluntarily proposed a settlement which was accepted by the Central Government on the recommendation of the Commission
In that situation he was in the same position as Qasim Razvi had been in and the observations to be found in the judgment of Mukherjea J who delivered the majority judgment in Syed Qasim Razvi vs The State of Hyderabad 1 applied to the present appeal
We do not think it is necessary for the purpose of this appeal to go minutely into the facts of Qasim Razvi s case 1 with reference to which the observations relied on had been made or to analyse the correctness of the reasoning adopted in that case for that can only be done by a larger Bench
We are definitely of opinion however that the observations made in the majority judgement should not be extended but must be kept strictly confined to the special facts of that case
In our judgement those observations have no application to the facts of the present appeal before us for here even after the commencement of the Constitution the process of investigation continued in that the authorised official went on collecting materials by following the procedure prescribed by section 7 and exercising the powers conferred on him by section 6 of the Investigation Act
The last argument advanced by the learned Attorney General is that if there had been a breach of the assessee s fundamental right by subjecting him to a discriminatory procedure laid down in the Investigation Act the asessee by voluntarily entering into a settlement must be taken to have waived such breach and cannot now be permitted to set up his fundamental right
Immediately two questions arise for consideration namely 1 whether the assessee could waive the breach of the fundamental right in question and 2 whether in the facts and circumstances of this case he had actually done so
1 In Behram Khurshed Pesikaka vs State of Bombay 2 there was a general discussion whether a 1 2 548 fundamental right could be waived
At page 638 Venkatarama Aiyar J observed  The question is what is the legal effect of a statute being declared unconstitutional
The answer to it depends on two considerations firstly does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a check on the exercise of a power which is within its competence and secondly if it is merely a check whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy
If the statute is beyond the competence of the Legislature as for example when a State enacts a law which is within the exclusive competence of the Union it would be a nullity
That would also be the position when a limitation is imposed on the legislative power in the interests of the public as for instance the provisions in Chapter XIII of the Constitution relating to inter State trade and commerce
But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals it is not a nullity but is merely unenforceable
Such an unconstitutionality can be waived and in that case the law becomes enforceable
In America this principle is well settled
Vide Cooley on Constitutional Limitations Volume 1 pages 368 to 371  Willis on Constitutional Law at pages 524 531 542 and 558  Rottschaefer on Constitutional Law at pages 28 and 29 30
 After referring to three decisions of the American Supreme Court which are also now relied on by the learned Attorney General the learned Judge concluded as follows  The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals
The rights guaranteed under article 19 1 f are enacted for the benefit of owners of properties and when a law is found to infringe that provision it is open to any person whose rights have been infringed to waive it and when there 549 is waiver there is no legal impediment to the enforcement of the law
It would be otherwise if the statute was a nullity in which case it can neither be waived nor enforced
If then the law is merely unenforceable and can take effect when waived it cannot be treated as non and as effaced out of the statute book
It is scarcely necessary to add that the question of waiver is relevant to the present controversy not as bearing on any issue of fact arising for determination in this case but as showing the nature of the right declared under article 19 1 f and the effect in law of a statute contravening it
 When the case came up before the court on review Mahajan C J with the concurrence of Mukherjea Vivian Bose and Ghulam Hassan JJ said at page 653  In our opinion the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter
No inference in deciding the case should have been raised on the basis of such a theory
The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it
Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution
We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice social economic and political liberty of thought expression belief faith and worship equality of status and of opportunity
These fundamental rights have not been put in the Constitution merely for individual benefit though ultimately they come into operation in considering individual rights
They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy
550 Reference to some of the Articles inter alia articles 15 1 20 21 makes the proposition quite plain
A citizen cannot get discrimination by telling the State  You can discriminate  or get convicted by waiving the protection given under articles 20 and 21
 On that occasion one of us preferred not to express any opinion on this subject and said at page 670  In coming to the conclusion that I have I have in a large measure found myself in agreement with the views of Venkatarama Aiyar J on that part of the case
1 however desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment particularly those relating to waiver of unconstitutionality the fundamental rights being a mere check on legislative power or the effect of the declaration under article 131 being  relatively void 
On those topics I prefer to express no opinion on this occasion
 It will however be noticed that the observations of the learned judges made in that case did not relate to the waiver of a breach of the fundamental right under article 14
The fundamental right the breach whereof is complained of by the assessee is founded on article 14 of the Constitution
The problem therefore before us is whether a breach of the fundamental right flowing from article 14 can be waived
For disposing Of this appeal it is not necessary for us to consider whether any of the other fundamental rights enshrined in Part III of our Constitution can or cannot be waived
We take the view that this court should not make any pronouncement on any question which is not strictly necessary for the disposal of the particular case before it
We therefore confine our attention to article 14 and proceed to discuss the question on that footing
Article 14 runs as follows  The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India
 It is the first of the five Articles grouped together under the heading  Right to Equality
The underlying object of this Article is undoubtedly to secure to 551 all persons citizen or non citizens the equality of status and of oppotunity referred to in the glorious preamble of our Constitution
It combines the English doctrine of the rule of law and the equal protection T clause of the 14th Amendment to the American Federal Constitution which enjoins that no State shall deny to any person within its jurisdiction the equal protection of the laws 
There can therefore be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States
Coming then to the language of the Article it must be noted first and foremost that this Arti cle is in form an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles eg article 19 do
The obligation thus imposed on the State no doubt enures for the benefit of all persons for as a necessary result of the operation of this Article they all enjoy equality before the law
That is however the indirect though necessary and inevitable result of the mandate
The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy
The next thing to notice is that the benefit of this Article is not limited to citizens but is available to any person within the territory of India
In the third place it is to be observed that by virtue of article 12  the State  which is by article 14 forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India
Article 14 therefore is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities
As regards the legislative organ of the State the fundamental right is further consolidated and protected by the provisions of article 13
Clause 1 of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution in so 552 far as they are inconsistent with the provisions of Part III shall to the extent of the inconsistency be void
Likewise el
2 of this Article prohibits the State from making any law which takes away or abridges the rights conferred by the same Part and follows it up by saying that any law made in contravention of this clause Shall to the extent of the contravention be void
It will be observed that so far as this Article is concerned there is no relaxation of the restriction imposed by it such as there are in some of the other Articles eg article 19 cls
2 to 6
Our right to equality before the law is thus completely and without any exception secured from all legislative discrimination
It is not necessary for the purpose of this appeal to consider whether an executive order is a  law within the meaning of article 13 for even without the aid of article 13 our right to the equal protection of the law is protected against the vagaries if any of the executive Government also
In this connection the observations of Lord Atkin in Eshugbayi Eleko vs Officer Administering the Government of Nigeria 1 are apposite
Said his Lordship at page 670 that in accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except when be can support the legality of his act before a court of justice That apart the very language of article 14 of the Constitution expressly directs that  the State  which by article 12 includes the executive organ shall not deny to any person equality before the law or the equal protection of the law
Thus article 14 protects us from both legislative and executive tyranny by way of discrimination
Such being the true intent and effect of article 14 the question arises can a breach of the obligation imposed on the State be waived by any person  In the face of such an unequivocal admonition administered by the Constitution which is the supreme law of the land is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so  If the Constitution asks the State as 1 LR 1931 A
C 662
553 to why the State did not carry out its behest will it be any answer for the State to make that  true you directed me not to deny any person equality before the law but this person said that I could do so for he had no objection to my doing it
 I do not think the State will be in any better position than the positions in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State s above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit
It seems to us absolutely clear on the language of article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State such as India is by her Constitution expected to do and no person can by any act or conduct relieve the State of the solemn obligation imposed on it by the Constitution
ever breach of other fundamental right a person or a citizen may or may not waive he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State
The learned Attorney General has relied on various passages in text books written by well known and eminent writers eg Cooley Willoughby Willis and Rottschaefer and on eight American decisions
In considering the statements of law made by American writers and judges the following observations of Patanjali Sastri C J in The State of Travancore Cocochin and others vs The Bombay Co Ltd 1 should conatantly be borne in mind scope and purpose and a varying body of doctrines and tests have grown around them interpreting extending or restricting from time to time their operation and application in the context of the expanding American commerce and industry and we are of opinion that not much help can be derived from them 1  112O 1121
70 554 in the solution of the problems arising under article 286 of the Indian Constitution
 See also The State of Bombay vs RMD Chamarbaugwala1
The American authorities cited by the Attorney General relate to waiver of obligations under a contract of the deprivation of right to property without due process of law or of the constitutional right to trial by jury and the like
They have no bearing on the question of the waiver of the equal protection clause of the 14th Amendment which like our article 14 is a mandate to the State
It is signifi cant that no American decision is forthcoming which upholds the waiver of the breach of that clause
When a case of breach of any of the fundamental rights akin to what are dealt with in the American authorities will come before us it will then be the time for us to discuss those authorities and to consider their applicability in the matter of the interpretation of the corresponding provisions of our Constitution
For the moment we prefer to confine our observations to a consideration of waiver of the breach of the fundamental right under article 14
Learned Attorney General has relied on three decisions of this Court 1 Laxmanappa Hanumantappa Jamkhandi vs The Union of India 2 2 Dewan Bahadur Seth Gopal Das Mohta vs The Union of India 3 and 3 Baburao Narayanrao Sanas vs The Union of India4 in support of his thesis that a breach of article 14 may well be waived by a person
In none of those cases all of which were disposed of on the same day October 21 1954 was the question of waiver specifically or seriously discussed
As learned counsel appearing for the intervener points out the first of the above mentioned cases proceeded on the footing that as article 265 was not a fundamental right conferred by Part III it could not be enforced under article 32
Learned counsel for the intervener further submitted that the decision in the 2nd case mentioned above could also be explained on that basis and on the further ground that proceeding under article 32 was not 1   918
3  2  4 intended to be used for obtaining relief against the voluntary action of a person and that appropriate remedy for recovery of money lay in a suit
The decision in the 3rd case proceeded on the same basis and did not carry the matter any further
It is impossible to treat any of those decisions as representing the considered opinion of this Court on the question of waiver of a breath of the fundamental right under article 14 of the Constitution
Reference was also made by the learned Attorney General to the decision of a Single Judge of the Allahabad High Court in Subedar vs State 1 where it was held that article 203 conferred merely a privilege and that such privilege could always be waived It was overlooked that if a person volun tarily answered any question then there was no breach of his fundamental right at all for the fundamental right is that a person shall not be compelled to incriminate himself
That case therefore is not a case of waiver at all
The case of Pakhar Singh vs The State 2 is also for the same reason not a case of waiver
2 The answer to this question depends upon facts which have not been properly investingated
The appeal is against the order of the income tax authorities which order makes no reference to the plea of waiver
Further the filing of the statements of case having been dispensed with we have not had the benefit of the statement of facts on which this plea is said to be founded
The view taken on question 1 however relieves us of the necessity of going into this question
On a consideration of the nature of the fundamental right flowing from article 14 we have no doubt in our mind that it is not for a citizen or any other person who benefits by reason of its provisons to waive any breach of the obligation on the part of the State
We are therefore of the opinion that this appeal should be accepted the order of the Income Tax Commissioner Delhi dated January 29 1958 should be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5 1954 1 A I R 1957 All
2 A 1
R 1958 Punj
556 should be quashed and that the assessee appellant should get the costs of this appeal
BHAGWATI J
I agree with the reasoning adopted and the conclusion reached in the judgments prepared by My Lord the Chief Justice and my brother section K Das J in regard to the ultra vires character of the proceedings adopted under section 8 A of the Taxation on Income Investigation Commission Act 1947 30 of 1947 and the void character of the settlement reached thereunder
As regards the parts of the judgments which deal with the question whether a fundamental right guaranteed by the Constitution can be waived at all I find myself in agreement with the judgment prepared by my brother Subba Rao J and am of the opinion that it is not open to a citizen to waive the fundamental rights conferred by Part III of the Constitution
The question of waiver came to be argued before us in this way
If the proceedings and the settlement under section 8 A of the Act were void as aforesaid the respondent contended that the appellant had waived the fundamental right enshrined in article 14 of the Constitution and was therefore not entitled to challenge the settlement
This was only by way of reply to the contention of the appellant and was not set out in proper details in any affidavit filed on behalf of the respondent
The learned Attorney General however relied upon the application made by the appellant before the Investigation Commission and the contents thereof as also the payments made by the appellant from time to time both before and after the pronouncement of our decision in M Ct
Muthiah vs The Commissioner of Income tax Madras 1 in order to support this plea of waiver and the arguments before us proceeded on that basis
No objection was taken by either of the parties before us to the issue of waiver being decided on such materials and the question was argued at considerable length before us
The arguments moreover extended to the whole field of fundamental rights and were not confined to article 14 only
1  557 We therefore see no reason why we should refrain from pronouncing our opinion on that question
The preamble to our Constitution article 13 and the language in which the fundamental rights have been enacted lead to one conclusion and one conclusion only that whatever be the position in America no distinction can be drawn here as has been attempted in the United States of America between the fundamental rights which may be said to have been enacted for the benefit of the individual and those enacted in public interest or on grounds of public policy
Ours is a nascent democracy
and situated as we are socially economically educationally and politically it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution
The limitations on those rights have been enacted in the Constitution itself eg in articles 19 33 and 34
But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution
The genesis of the declaration of fundamental rights in our Constitution can be traced to the following passage from the Report of the Nehru Committee 1928  Canada Australia and South Africa have no declaration of rights in their Constitutions but there are various articles to be found in the Constitution of the Irish Free State which may properly be grouped under the general head  fundamental rights 
The reason for this is not far to seek
Ireland is the only country where the conditions obtaining before the treaty were the nearest approach to those we have in India
The first concern of the people of Ireland was as indeed it is of the people of India to day to secure fundamental rights that have been denied to them
The other dominions had their rise from earlier British 558 settlements which were supposed to have carried the law of England with them
Ireland was taken and kept under the rule of England against her own will and the acquisition of dominion status by her became a matter of treaty between the two nations
We conceive that the constitutional position in India is very much the same
That India is a dependency of Great Britain cannot be denied
That position can be altered in one of two ways force or mutual consent
It is the latter in furtherance of which we are called upon to recommend the principles of a constitution for India
In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances
 At the Round Table Conference that preceded the making of the Government of India Act 1935 therefore the Indian leaders pressed for a Bill of Rights in the proposed Constitution Act in order to bind the administration with certain declarations of individual rights
This was however rejected by the Simon Commission with these observations  We are aware that such provisions have been inserted in many Constitutions notably in those of the European States formed after the War
Experience however has not shown them to be of any great practical value
Abstract declarations are useless unless there exist the will and means to make them effective
 The framers of our Constitution however followed the American view represented by the famous words of Jefferson in preference to that expressed by the Simon Commission   The inconveniences of the declaration are that it may cramp government in its useful exertions
But the evil of this is short lived moderate and reparable
The inconveniences of the want of a declaration are permanent afflictive and irreparable
They are in constant progression from bad to worse
The executive in our governments is not the sole it is scarcely the principal object of my jealousy
The tyranny of the legislatures is the most formidable dread    559 Vide Basu s Commentary on the Constitution of India Vol 1 p 74
and incorporated the fundamental rights in Part III of our Constitution
The object sought to be achieved was as the preamble to the Constitution states  to secure to all its citizens JUSTICE social economic and political LIBERTY of status and of opportunity and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation and article 13 provided  13
1 All laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part shall to the extent of such inconsistency be void
2 The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void    Laws in force  were defined in article 133 to include   Laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas  and they were declared void in so far as they were inconsistent with the provisions of this Part to the extent of such inconsistency
As regards laws to be enacted after the commencement of the Constitution the State in the wider significance of the term as including  the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India  Vide article 12 was enjoined not to make any law which takes away or abridges the rights conferred by this Part and any law made in con travention of this clause was to the extent of the 560 contravention declared void
It will be seen that the prohibition was thus effective both against past laws as well as future laws and both were equally void in so far as they were  inconsistent with  or  in derogation of  the fundamental rights enshrined in Part III of the Constitution
no distinction was made between the past laws and future laws in this respect and they were declared void to the extent of the inconsistency or the extent of the contravention a the case may be leaving the unoffending parts thereof untouched
It will be also seen that under article 132 an admonition was administered to the State not to enact any law which takes away or abridges the rights conferred by this Part and the obligation thus imposed on the State enured for the benefit of all citizens of Bharat alike in respect of all the fundamental rights enacted in Part III of the Constitution
No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy
The question then arises whether a breach of the obligation thus imposed on the State can be waived by a citizen
To borrow the words of My Lord the Chief Justice  In the face of such unequivocal admonition administered by the Constitution which is the supreme law of the land is it open to the State to disobey the Constitutional mandate merely because a citizen told the State that it may do so  if the Constitution asks the State as to why the State did not carry out its behest will it be any answer for the State to make that  True you directed me not to take away or abridge the rights conferred by this Part but this citizen said that I could do so for he had no objection to my doing so
 I do not think the State will be in any better position than the position in which Ad am found himself when God asked him as to why he had eaten the forbidden fruit and the State s above answer will be as futile as that of Adam who pleaded that the woman had tempted him and Bo he ate the forbidden fruit
 It is absolutely clear on a perusal of article 132 of the Constitution that it is a constitutional mandate 561 to the State and no citizen can by any act or conduct relieve the State of the solemn obligation imposed on it by article 132 and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy
What then is the basis of this distinction which has be strenuously urged before us that there are certain fundamental rights which are enacted only for the private benefit of a citizen eg rights of property which can be waived by him and there are other fundamental rights enacted for the public good or as a matter of public policy which it would not be open to a citizen to waive even though he were affected by the breach thereof
Reliance is placed in this behalf on certain decisions of the Supreme Court of the United States of America passages from Willoughby Willis and Rottschaeffer quoted in the judgment of T L Venkatarama Aiyar J in Behram Khurshed Pesikaka vs The State of Bombay 1 and the observations of the said learned Judge in that case adopting the said distinction
Vide pp
638 643 of the Report
I am afraid this distinction cannot be accepted
There is nothing in the terms of the various articles embodying the fundamental rights in Part III of our Constitution which warrants such a distinction
The fundamental rights are enacted with all precision and wherever limitations on their exercise are thought of they are also similarly enacted
Such constitutional limitations are to be found within the terms of the articles themselves and there is no justification for reading in the terms of the articles anything more than what is expressly stated therein
There is further this distinction between the American Constitution and ours that whereas the American Constitution was merely enacted in order to form a more perfect union establish justice insure domestic tranquillity provide for common defence promote the general welfare and secure the blessings of liberty and was an outline of government and nothing more our Constitution was 1 71 562 enacted to secure to all citizens justice Liberty  Equality and Fraternity and laid emphasis on the welfare state and contained more detailed provisions defining the rights and also laying down restrictions thereupon in the interest of the general welfare etc
As observed by Wills in his Constitutional Law at p 477 The conflict between man and the state is as old as human history
For this reason some compromise must be struck between private liberty and public authority
There is some need of protecting personal liberty against governmental power and also some need of limiting personal liberty by governmental power
The ideal situation is a matter of balancing one against the other or adjusting conflicting interests  In the United States Constitution an attempt has been made to strike a proper balance between personal liberty and social control through express limitations written into the Constitution and interpreted by the Supreme Court by implied limitations created by the Supreme Court and by the development of the governmental powers of regulation taxa tion and eminent domain by the Supreme Court Ibid pp 477 478 whereas our Constitution has expressly sought to strike the balance between a written guarantee of individual rights and the collective interests of the community by making express provisions in that behalf in Part III of the Constitution
Vide Gopalan vs State of Madras 1
Moreover in the matter of considering the statements of law made by the text book writers in America and the dicta of the judges of the Supreme Court there in the various decisions cited before us we must bear in mind the following admonition of Patanjali Sastri C J in the State of Travancore Cochin vs The Bombay Co Ltd 2
 These clauses are widely different in language scope and purpose and a varying body of doctrines 1  2 1952 SCR1112 1120 and tests have grown around them interpreting extending or restricting from time to time their operation and application in the context of the expanding American commerce and industry and we are of opinion that not much help can be derived from them in the solution of the problems arising under article 286 of the Indian Constitution or for the matter of that articles embodying the fundamental rights in Part III of our Constitution see also The State of Bombay vs R M D Chamarbaugwala1 The rights conferred on citizens may be thus classified  i statutory rights ii constitutional rights and iii fundamental rights
One need not consider the statutory rights in this context but the constitutional rights are those created and conferred by the Constitution
They may or may not be waived by a citizen as stated in the text books and the decisions of the Supreme Court of the United States of America above referred to
But when the rights conferred are put on a high pedestal and are given the status of fundamental rights which though embodied in the Constitution itself are in express terms distinguished from the other constitutional rights eg fundamental rights which are enshrined in Part III of the Constitution and are enacted as immune from any legislation inconsistent with or derogatory thereto and other constitutional rights which are enacted in other provisions for instance in articles 265 and 286 and in Part XIII of the Constitution they are absolutely inviolable save as expressly enacted in the Constitution and cannot be waived by a citizen
The Constitution adopted by our founding fathers is sacrosanct and it is not permissible to tinker with those fundamental rights by any ratiocination or analogy of the decisions of the Supreme Court of the United States of America
The only manner in which that can be done is by appropriate amendment of the Constitution and in no other manner whatever
There is no difficulty whatever in working out this position and to my mind the difficulties pointed out 1   918
564 are more imaginary than real
If a citizen wanted to assert his fundamental right under the circumstances envisaged for instance in the judgment of my brother section K Das J and made an application for a writ under article 32 or article 226 of the Constitution he would be promptly confronted with the argument that the Court should in the exercise of its discretion refuse him the relief prayed for
The remedy is purely discretionary and no Court in those circumstances would exercise  its discretion in his favour Vide Dewan Bahadur Seth Gopal Das Mohta vs Union of India 1 Baburao Narayan Savas vs Union of India2 and Laxmanappa Hoonmantappa Janakhandi vs Union of India 3
Even then he might merely obtain a relief declaring the legislation ultra vires the Constitution and the Court would not grant him any consequential relief For that relief he would have to approach the regular courts of law when all questions of law apart from the mere constitutionality of the provision would be considered by the Court on a contest between the par
ties eg estoppel acquiescence limitation and the like Compare our observations in Sales Tax Officer Banaras vs Kanayalal Mukundlal Saraf 4 
The only thing which parties would be concluded by would be the adjudication as to the ultra vire s character of the measure in question and the citizen would not be entitled to the relief claimed merely for the asking
These considerations therefore do not militate against the position that a citizen cannot waive the fundamental rights conferred upon him by Part III of the Constitution
I fully endorse the opinion expressed by Mahajan C J in Behram Khursheed Pesikaka vs The State of Bombay 5 at page 653  We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a 1 1955 I SCR 773
3 19551 1 SCR 769
2 4 Civil Appeal No 87 Of 1957 decided on September 23 1958
5 565 sovereign democratic republic and to secure to all its citizens justice social economic and political liberty of thought expression belief faith and worship equality of status and of opportunity
These fundamental rights have not been put in the Constitution merely for individual benefit though ultimately they come into operation in considering individual rights
They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy
 This in my opinion is the true position and it cannot therefore be urged that it is open to a citizen to waive his fundamental rights conferred by Part III of the Constitution
The Supreme Court is the bulwark of the fundamental rights which have been for the first time enacted in the Constitution and it would be a sacrilege to whittle down those rights in the manner attempted to be done
The result is however the same and agree with the order proposed by My Lord the Chief Justice
section K DAS J
This is an appeal by special leave from an order dated January 29 1958 passed by the Commissioner of Income tax Delhi respondent No 1 before us in circumstances which are somewhat unusual and out of the ordinary
We shall presently relate those circumstances but at the very outset it may be stated that two questions of far reaching importance fall for consideration in this appeal
One is the validity of a settlement made under section 8A of the Taxation on Income Investigation Commission Act 1947 30 of 1947 hereinafter referred to as the Act after the coming into force of the Constitution on January 26 1950 and the second is if a fundamental right guaranteed by the Constitution can be said to have been waived by the appellant in the circumstanoes of this case The appellant before us is Basheshar Nath whom we shall hereafter call the assessee
As we have already stated the Commissioner of Income tax Delhi is the first respondent The second respondent 566 is the Union of India
We also allowed the Model Knitting Industries a limited liability Company with its registered office in Calcutta to intervene in the appeal on the ground that the intervening Company has a case pending in the High Court of Calcutta where the same questions are in issue
We have also heard the intervener in support of the appeal
On behalf of the appellant it has been  contended that the Commissioner of Income tax Delhi is a tribunal within the meaning of Art 136 of the Constitution and exercised judicial functions when it passed the impugned order of January 29 1958
The respondents pointed out however that the so called order was nothing but a reply which respondent No 1 gave to a communication received from the assessee
However the respondents have waived any prelimi nary objection to the maintainability of the present appeal and the learned Attorney General appearing for the respondents has frankly stated before us that he is raising no such preliminary objection as the Union Government is equally anxious to have a decision on the question very important from its point of view and with far reaching financial consequences as to whether a settlement made under section 8A of the Act after January 26 1950 and the orders passed thereon by the Union Government are valid
We have therefore proceeded on the footing that the present appeal is competent and have considered it unnecessary to decide in the abstract the more general question as to the circumstances in which an order made by a revenue authority like the Commissioner of Income tax partakes of the character of A judicial or quasi judicial order
Now for the facts and circumstances which have led up to this appeal
The Act received the assent of the Governor General on April 18 1947 and came into force on May 1 1947
On July 22 1948 the case of the assessee was referred to the Investigation Commission constitued under section 3 of the Act
The reference was made under section 51 of the Act and it stated that the Central Government had prima facie reasons for believing that the assessee either alone or 567 in combination with  other persons evaded payment of taxation on income to a substantial extent and therefore the case of the asseesee was sent to the Investigation Commission for investigation and report
The period of investigation was from April 1 1939 to March 31 1947
The report of the Investigation Commission which has been made available to us shows that the case against the assessee was that he carried on a business of supplying tents executing contract works and commission agency for some textile mills on a fairly extensive scale both individually and in partnership With his brother
It appears that the total wealth statement of the assessee was filed on November 10 1948 and was forwarded to an authorised official appointed under section 63 of the Act
From January 8 1949 to October 14 1949 the authorized official was engaged in the collection of assessment records of the assessee from the income tax authorities and of materials from the Civil Supplies Directorate
On July 5 1949 the total wealth statement was received back from the assessee and the order sheet shows that on May 26 1950 that is after the coming into force of the Constitution the authorised official is sued a notice to the assessee fixing the hearing for June 10 1950
The assessee then asked for time and it appears that for a period of about three years till June 1953 nothing was done
Thereafter the authorised official held a preliminary investigation and computed intially that the undisclosed income of the assessee for the period in question was Rs 1207000 on further scrutiny and examination of accounts and after heating the assessee s explanation the authorised official reduced the amount in his final report submitted sometime towards the end of 1953 to Rs 956345
The Investigation Commission considered the report of the authorised official heard the assessee and came to the conclusion that the total amount to be assessed in the hands of the assessee was Rs  447915
In their report dated May 24 1954 the Investigation Commission said  During the course of the hearing before usthe assessee as well as his Auditors applied for a 568 settlement after admitting liability for the aforesaid sum
In the circumstances we consider it proper to allow the assessee the benefit of a settlement on the lower concessional basis of 75 of evaded income payable by way of tax and a moderate penalty of Rs 14064 
The assessee accepting our findings both as regards the amount of income that escaped assessment and the amount of tax and penalty payable offered a settlement
In the circumstances we re commend the acceptance by the Government of the assessee s offer of a settlement
 The Central Government accepted the settlement under section 8A of the Act and on July 5 1954 passed an order under section 8A2 directing the issue of a demand notice by the Income tax Officer concerned for a sum of Rs 350000 including the penalty of Rs 14064 on the assessee and further directing that  all such other proceedings under the Indian Income tax Act or under any other law as may be necessary should be taken with a view to enforcing the payment of the demand and the terms and conditions of settlement Though under the terms of settlement no instalments were given it appears that the assessee was allowed to pay the amount at the rate of Rs 5000 per month
It further appears that up to and including September 8 1957 the assessee had paid in all a sum of Rs 128000 towards the demand
In December 1955 was given the decision of this Court in M CT
Muthiah vs The Commissioner of Income tax Madras 1 in which the majority of Judges held that section 51 of the Act was ultra vires the Constitution as it was discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution by reason of two amendments which were made in section 34 of the Indian Income tax Act 1922 one in 1948 by the enactment of the Income
tax and Business Profits Tax Amendment Act 1948 48 of 1948 and the other in 1954 by the enactment of the Indian Income tax Amendment Act 1954 33 of 1954
Sometime earlier than the aforesaid deci sion the Income tax Officer concerned had sent a 1   569 recovery certificate to the Collector New Delhi and the assessee stated that in execution of the said certificate his properties situated in Dharamsala and Hissar were attached
On December 27 1957 the assessee filed a petition to the Income tax Commissioner Delhi in which after stating the relevant facts the assessee claimed that after the decision in Muthiah s case 1 the settlement made under section 8A of the Act had no force and was not binding on him the assessee then prayed that the attached properties should be released from attachment and the amounts recovered under the terms of settlement refunded to him
On January 29 1958 the Commissioner of Income tax sent the following reply  With reference to your petition dated 27th December 1957 regarding the settlement arrived at under section 8A2 of the Taxation on Income Investigation Commission Act 1947 1 am to inform you that the settlement is valid and binding on you
You are  therefore requested to make good the arrears of instalments which you have not paid recently by 5th February 1958 and also to continue making the payments in accordance with the instalments  scheme agreed to failing which the recovery proceedings will be vigorously pursued through the usual recovery channels
 The assessee asked for and obtained special leave from this Court on February 17 1958 to appeal from the aforesaid order
In the appeal as orginally filed in pursuance of the special leave granted to the assessee the prayer portion was inadvertently left out
Subsequently the assessee prayed that a the report of the Investigation Commission dated May 24 1954 be quashed b the settlement made on the basis of the report and the directions given by the Central Government in pursuance thereof and the proceedings for recovery of arrears of tax be all quashed and c the amounts already recovered may be ordered to be refunded
With regard to the last prayer we may state here that it was not pressed before us and we are relieved from the task at least in this appeal of 1  72 570 deciding in what circumstances and on what considerations a refund of tax voluntarily paid can be claimed
Therefore the first and foremost question before us is the validity of the settlement made under section 8A of  the Act
On behalf of the assessee the main argument is that section 51 of the Act having been held ultra vires the Constitution the very foundation for the report of the Investigation Commission has disappeared and a settlement based thereon is neither valid nor can it be enforced
On behalf of the respondents the learned Attorney General has contended that there is no decision of this Court which has held that section 51 of the Act is wholly void and on a proper construction of the various sections of the Act it will be found that there are two separate and distinct procedures or jurisdictions which the Investigation Commission may follow or exercise one is investigation and the other relates to settlement
He has submitted that the jurisdiction conferred on the Investigation Commission under section 8A which was inserted in the Act in 1949 by section 33 of Act 67 of 1949 is not affected by the decision in Muthiah s case 1 and if the Investigation Commission had jurisdiction to entertain an application from the assessee for settlement approve of the same and refer it to the Central Government the latter had also jurisdiction to accept it under sub s1 and make necessary orders under subs
2 of section 8AIn short the argument of the learned Attorney General is that there is nothing in Muthiah s decision 1 which renders section 8A constitutionally invalid
It is necessary to read at this stage the relevant provisions of the Act in so far as they bear upon the problems before us
We have said that the Act came into force on May 1 1947
This was before the coming into force of the Constitution of India and no question of the violation of any fundamental rights guaranteed by the Constitution arose on that date
Section 3 of the Act empowers the Central Government now Union Government to constitute a Commission to be called the Income tax Investigation 1  571 Commission whose duties shall be to quote the words of the section  a to investigate and report to the Central Government on all matters relating to taxation on income with particular reference to the extent to which the existing law relating to and procedure for the  assessment and collection of such taxation is adequate to prevent the evasion thereof  bto investigate in accordance with the provisions of this Act any case or point in a case referred to it undersection 5 and make a report thereon including such interim reports as the Commission may think fit to the Central Government in respect of all or any of the assessments made in relation to the case before the date of its report or interim report as the case may be
 We are concerned in this appeal with the duty of the Commission referred to in section 3b above
Section 4 deals with the composition of the Commission details whereof are unnecessary for our purpose Sub sections 1 2 and 4 of section 5 are relevant to the problems before us and must be read   51
The Central Government may at any time before the 1st day of September 1948 refer to the Commission for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a person has to a substantial extent evaded payment of taxation on income together with such material as may be available in support of such belief and may at any time before the 1st day of September 1948 apply to the Commission for the withdrawal of any case or points in a case thus referred and if the Commission approves of the withdrawal no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn
2 The Commission may after examining the material submitted by the Central Government with reference to any case or points in a case and making such investigation as it considers necessary report to the Central Government that in its opinion further investigation is not likely to reveal any substantial 572 evasion of taxation on income and on such report being made the investigation shall be deemed to be closed
3          4 If in the course of investigation into any case or points in a case referred to it under sub section 1 the Commission has reason to believe athat some person other than the person whose case is being investigated has evaded payment of taxation on income or b that some points other than those referred to it by the Central Government in respect of any case also require investigation it may make a report to the Central Government stating its reasons for such belief and on receipt of such report the Central Government shall notwithstanding anything contained in sub section 1 forthwith refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report
 Section 5 as originally enacted mentioned the date 30th of June 1948 but by Act 49 of 1948 the date substituted was  1st day of September 1948 
Section 6 states the powers of the Commission and they may be summarised thus a the Commission has power to require any person or banking or other Company to give information on relevant points b it has power to administer oaths and all the powers of a civil court to take evidence enforce the attendance of witnesses etc c it has power to impound and retain a document in its custody dit has power to ask an authorised official to examine accounts and interrogate any person e it has power to give directions to an authorised official f it has power to close the investigation and make a best of judgment assessment in respect of a person who refuses or fails to attend in person to give evidence or produce documents etc and 573 g it has power of seizure search etc
in certain specified circumstances
Sections 6A and 6B deal with the power of the Commission to tender immunity from prosecution and to withdraw such tender
Section 7 states the procedure to be followed by the Commission sub sections
2 4 and 6 whereof need only be referred to here  72 In making an investigation under clause b of section 3 the Commission shall act in accordance with the principles of natural justice shall follow as far as practicable the principles of the 1 of 1872 and shall give the person whose case is being investigated a reasonable opportunity of rebutting any evidence adduced against him and the power of the Commission to compel production of documents shall not be subject to the limitation imposed by section 130 of the 1 of 1872 and the Commission shall be deemed to be a court and its proceedings legal proceedings for the purpose of sections 5 and 6 of the XVIII of 1891
3          4 No person shall be entitled to inspect call for or obtain copies of any documents statements or papers or materials furnished to obtained by or produced before the Commission or any authorised official in any proceedings under this Act but the Commission and after the Commission has ceased to exist such authority as the Central Government may in this behalf appoint may in its discretion allow such inspection and furnish such copies to any person Provided that for the purpose of enabling the person whose case or points in whose case is or are being investigated to rebut any evidence brought on the record against him he shall on application made in this behalf and on payment of such fees as may be prescribed by Rules made under this Act be furnished with certified copies of documents statements papers and materials brought on the record by the Commis Sion
5          574 6 In any proceedings under this Act the Commission may in its discretion admit in evidence and act upon any document notwithstanding that it is not duly stamped or registered
 Section 8 states in effect what the Commission shall do on the conclusion of the investigation it states that the materials brought on the record shall be considered by all the members and the report shall be in accordance with the opinion of the majority
Subsection 2 of section 8 gives the Central Government power to direct reopening of assessment proceedings on the report of the Commission
Sub section 4 states that in the assessment or reassessment proceedings in pursuance of a direction given under sub section
2 the findings recorded by the Commission shall be final subject to the provisions of sub sections
5 and 6
Then comes section 8A which must be quoted in full section 8A1 Where any person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him the Commission shall if it is of opinion that the terms of the settlement contained in the application may be approved refer the matter to the Central Government and if the Central Government accepts the terms of such settlement the Commission shall have the terms thereof recorded and thereupon the investigation in so far as it relates to matters covered by such settlement shall be deemed to be closed
2 For the purpose of enforcing the terms of any settlement arrived at in pursuance of subsection 1 the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act 1922 XI of 1922 the Excess Profits Tax Act 1940 XV of 1940 or any other law may be taken against the person to whom the settlement relates and in particular the provisions of the second proviso to clause
a of sub section 5 of section 23 section 24B the proviso to sub section 2 of section 25A the proviso to sub section 2 of section 26 and sections 44 and 46 of the Indian Income tax Act 1922 575 shall be applicable to the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrear of income tax within the meaning of those provisions
3 Subject to the provisions of subsection 6 of section 8 any settlement arrived at under this section shall be conclusive as to the matters stated therein and no person whose case has been so settled shall be entitled to reopen in any proceeding for the recovery of any sum under this section or in any subsequent assesssment or reassessment proceeding relating to taxation on income or in any other proceeding before any court or other authority any matter which forms part of such settlement
4 Where a settlement has been accepted by Government under sub section 1 no proceedings under section 34 of the Indian Income tax Act 1922 XI of 1922 or under section 15 of the Excess Profits Tax Act 1940 XV of 1940 shall be initiated in respect of the items of income covered by the settlement unless the initiation of such proceedings is expressly allowed by the terms of the settlement
 Section 9 bars the jurisdiction of courts but it is not disputed that if any of the provisions of the Act are ultra vires the Constitution section 9 will neither cure the defect nor stand in the way of the assessee
Section 10 the last section gives the Central Government power to make rules
The above recital gives a brief conspectus of the main provisions of the Act
It is necessary now to refer to a few earlier decisions of this Court with regard to some of these provisions
The earliest in point of time is the decision in Suraj Mall Mohta and Co vs A V Viswanatha Sastri where sub section
4 of section 5 of the Act and the procedure prescribed by the Act in so far as it affected the persons proceeded against under that sub section were held to be discriminatory and therefore void and unenforceable
No opinion was however expressed on the validity of section 51 of the Act
1  576 In Shree Meenakshi Mills Ltd Madurai vs Sri A V Viswanatha Sastri 1 it was held that after the coming into force on July 17 1954 of the Indian Income tax Amendment Act 1954 33 of 1954 which operated on the same field as section 51 of the Act the provisions of section 5 1 became void and unenforceable as being discriminatory in character
It was further held that when an Act was valid in its entirety before the date of the Constitution that part of the proceedings regulated by the special procedure and taken during the pre Constitution period could not be questioned how
ever discriminator it might have been but the discriminatory procedure could not be continued after the coming into force of the Constitution
In that case Meenakshi Mills  case1 the Investigation Commission had not even commenced the proceedings though a period of seven years had elapsed and the investigation was pending when the writ petitions were filed
In those circumstances it was held that the proceedings before the Investigation Commission which had become discriminatory could no longer be continued
Then came the decision in M CT
Muthiah vs The Commissioner of Income tax Madras2
The facts relevant to that decision were that the Investigation Commission held an enquiry into three cases and submitted a report on August 26 1952 finding a particular sum to be the undisclosed income during the investigation period
The Central Government accepted the report and passed an order under section 82 of the Act on September 16 1952
Notices under section 34 of the Indian Income tax Act were then issued and reassessments except for one year were made on the findings of the Commission which were treated as final and conclusive
The re assessment orders were served on the assessees in February and May 1954
On December 6 1954 the assessees filed their writ petitions challenging the constitutionality of section 5 1 of the Act
It was held by the majority that section 5 1 was discriminatory and violative of the fundamental right guaranteed under article 14 of the Constitution because section 34 of the Indian Income tax Act 1922 as 1 2  577 amended in 1948 operated on the same field and from and after January 26 1950 it included the strip of territory which was also occupied by section 5 1 and two substantially different laws of procedure one more  prejudicial to the assessee than the other could not be allowed to operate on the same field in view of the  guarantee of article 14 of the Constitution
In the result it was held that barring those cases which were already concluded by reports made by the Commission and directions given by Government before January 26 1950 the cases which were pending before the commission for investigation as also assessment or reassessment proceedings which were pending on January 26 1950 were hit by article 14
The assessment orders were accordingly quashed as being unconstitutional
Now we come back to the problems before us 1 what is the effect of Muthia s decision1 in the present ease and 2 does the Act contemplate two separate and distinct but severable procedures or jurisdictions one relating to investigation and the other to settlement so that the vice of discrimination if any attaches to the investigation procedure only and not to the other  We do not see how the learned Attorney General can escape from the position that Muthia s decision 1 holds in express terms that section 5 1 of the Act was hit by article 14 of the Constitution on and after January 26 1950
The ratio of the decision was thus explained in the majority judgment at page 1260 1261  After the 8th September 1948 there were two procedures simultaneously in operation the one under Act XXX of 1947 and the other under the Indian Income tax Act with reference to persons who fell within the same class or category viz that of the substantial evaders of income tax
After the 8th September 1948 therefore some persons who fell within the class of substantial evaders of income tax were dealt with under the drastic and summary procedure prescribed under Act XXX of 1947 while other 1  73 578 persons who fell within the same class of substantial evaders of income tax could be dealt with under the procedure prescribed in the Indian Income tax Act after service of notice upon them under the amended section 34 1 of the Act
Different persons though falling under the same class or category of substantial evaders of income tax would therefore be subject to different procedures one a summary and drastic procedure and the other a normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed in Act XXX of 1947
The legislative competence being there these provisions though discriminatory could not have been challenged before the advent of the Constitution
When however the Constitution came into force on the 26th January 1950 the citizens obtained the fundamental rights enshrined in Part III of the Constitution including the right to equality of laws and equal protection of laws enacted in article 14 thereof and whatever may have been the position before January 26 1950 it was open to the persons alleged to belong to the class of substantial evaders thereafter to ask as to why some of them were subjected to the summary and drastic procedure prescribed in Act XXX of 1947 and others were subjected to the normal procedure prescribed in section 34 and the cognate sections of the Indian Income tax Act the procedure prescribed in Act XXX of 1947 being obviously discriminatory and therefore violative of the fundamental right guaranteed under article 14 of the Constitution
 That ratio is equally applicable in the present case and if section 51 of the Act is unenforceable after January 26 1950 the reference made thereunder against the assessee must also fall after that date and with it must go overboard all that was done under the drastic and summary procedure prescribed under the Act after January 261950
Two possible arguments that 1 substantial evaders whose s were referred by the Central Government for investigation by the Commission 579 before September 1 1948 formed a class by themselves and 2 that proceedings having started before the Commission under a reference valid at the time when it was made cannot be affected by any subsequent amendment of the Income tax Art 1922 were raised but not accepted in Suraj Mall Mohta s Meenakshi Mills  or Muthia s case 1 2 3
There has been some argument before us as to how the two procedures one prescribed under the Income tax Act 1922 and the other under the Act compare and contrast with each other but this is a point which was canvassed at great length in each of the three cases mentioned above
This Court found in unequivocal terms that the procedure prescribed under the Act was more summary and drastic and in Suraj Mall Mohta s case the substantial differences between the two procedures were summarised at pp
463 466 of the report
We do not propose to cover the same ground again but cop tent ourselves with drawing attention to what was pointedly said in Suraj Mall Mohta s case namely that it was conceded on behalf of Government that the procedure prescribed by the impugned Act in sections 6 and 7 which we have read earlier was more drastic than the procedure prescribed in sections 37 and 38 of the Indian Income tax Act
It was stated therein that though in the first stages of investigation there was some similarity between the two procedures the overall picture was not the same
The learned Attorney General has not seriously contested the correctness of this position but has argued that what we are concerned with in the present case is not the mere possibility of a differential treatment but what actually was done by the Commission in the case of the present assessee after January 26 1950
He has submitted that the assessee was not subjected to any differential treatment in fact and has invoked to his aid the ratio of our decision in Syed Qasim Razvi vs The State of Hyderabad 4 where the majority judgment laid down the following tests in a case where part of the trial cannot be challenged as 1 1955 1SCR448 2 3 1955 2 SCR 1247
4 580 bad it is incumbent on the court to consider first whether the discriminatory provisions of the law can be separated from the rest and even without them a fair measure of equality in the matter of procedure can be secured and secondly whether the procedure actually followed did or did not proceed upon the discriminatory provisions and it was stated that a mere threat or possibility of unequal treatment was not sufficient to invalidate the subsequent proceedings
A reference was there made to the earlier decisions of this Court in Keshavan Madhava Xenon vs The State of Bombay 1 and Lachmandas Kewalram Ahuja vs The State of Bombay 2  and the decision in Lachmandas case supra again a majority decision was distinguished on two grounds first the question as to whether after eliminating the discriminatory provisions it was still possible to secure a fair measure of equality with the normal procedure was neither raised nor considered  secondly it was assumed that it was not possible to proceed with the trial without following the discriminatory procedure and as that procedure became void on the coming into force of the Constitution the jurisdiction to proceed under that procedure came to an end
Applying the tests laid down in the majority decision of Syed Qasim Razvi s case 3 the learned Attorney General has contended that in the present case the discriminatory provisions can be separated from the rest of the Act and the assessee was not in fact subjected to any discriminatory procedure
He has sought to distinguish Muthia s case on the same ground viz that the re assessments made in that case were actually based on a discriminatory procedure
In our view the ratio of the majority decision in Syed Qasim Razvi s case 3 has no application in the case under our consideration and the principle which applies is what was laid down in Lachmandas s case 2
The majority decision is Syed Qasim Razvi s case proceeded on the finding to quote the words of Mukherjea J who delivered the majority judgment that  although there were deviations in certain particulars 1  2 3 581 the accused had substantially the benefit of a normal trial
The minority judgments however very pertinently pointed out that the discriminatory provisions were an integral part of the Regulation under which the accused person in that case was tried and in fact the discriminatory provisions were applied
Bose J as he then was expressed the view at p 618  that in testing the validity of a law it is irrelevant to consider what has been done under it for a law is either constitutional or not and the validity or otherwise cannot depend upon what has been accomplished under its provisions
 It is we think unnecessary to go into the controversy which arises out of the two views expressed above
For the present case it is sufficient to say that 1 the discriminatory provisions are an integral part of the procedure prescribed under the Act which cannot be separated from the rest and 2 we are satisfied that the report which led to the settlement was made by the Investigation Commission in pursuance of and as a direct result of the discriminatory procedure which it followed
Indeed the Investigation Commission followed the only procedure of investigation prescribed under the Act which was a drastic and summary procedure and if that procedure became void on the coming into force of the Constitution the jurisdiction of the Investigation Commission practically came to an end see Lachmandas s case supra
It is necessary to explain here why we cannot accept the contention of the learned Attorney General that there are two procedures or two jurisdictions under the Act
What in substance is the effect of the provisions of the Act in so far as they relate to the Commission s duty under section 3 b The Commission receives a reference under section 5 1 if it does not proceed under section 5 2 it exercises such of its powers under section 6 as it considers necessary
It then follows the procedure laid down in section 7 and submits its report under section 8
On that report the Central Government takes action under section 8 2
If however the assessee applies for settlement even then the Commission has the duty to report to Government if the terms of settlement are 582 approved by it
To fulfil this duty the Commission must get the materials by exercising its powers under section 6 and by following the procedure laid down in section 7
That is exactly what was done in the present case
An authorised official was asked to examine the accounts etc
under section 6 3
He examined the accounts and submitted an interim report in 1953
He followed the procedure laid down in the Act with regard to inspection of documents examination of witnesses etc
He then submitted a final report
The Commission then heard the assesee on May 19 1954 and reserved orders
On May 20 1954 after the assessee knew what the final finding of the Commission was going to be he filed an application for settlement
The Commission made its final report four days after
It is difficult to understand how in the circumstances stated above it can be said that the Commission followed a non discriminatory procedure or that it had two jurisdictions one relating to investigation and the other to settlement
The jurisdiction was really one and the procedure followed also the same
It is not as though the Act provided a separate procedure for purposes of effecting a settlement nor is this a case where a settlement has been made without applying any of the provisions relating to investigation
A full investigation was made and after the assessee had been subjected to the drastic and summary procedure under the Act he was told what the result of the investigation was
Then he made an application for settlement which was approved by the Commission under section 8A
We are accordingly of the view that the learned Attorney General has failed to make out his case that 1 Muthia s decision 1 does not apply and 2 the settlement under section 8A of the Act is a legally valid settlement by reason of the severability or non application of the discriminatory procedure under the Act in the case of the assessee
This brings me to the second question that of waiver of a fundamental right which is as important as it is complex
It is a question on which unfortunately we 1 1955 2 SCR1247
583 have not been able to achieve unanimity
It is beset with this initial difficulty that the present appeal is not from a judgment or order rendered after the trial of properly framed issues it is from an order which merely rejected the prayer of the assessee that his properties attached in execution of the recovery certificate should be released and the amounts paid under the terms of the settlement refunded
The question of waiver was neither raised nor tried and the necessary facts were not ascertained or determined by the revenue authority concerned
Unfortunately the filing of a statement of their case by the parties was also dispensed with the result whereof has been that the question of waiver has been urged for the first time in the course of arguments here
We have however heard full arguments on it and proceed to consider it on such materials as have been placed before us
It is necessary to make one point clear
The respondents have raised the plea of waiver and the onus lies heavily on them to establish the essential requirements in support of the plea
Two points arise in this connection 1 have the respondents established on the materials before us the necessary facts on which a plea of waiver can be founded  and 2 if so can a fundamental right guaranteed by the Constitution be waived at all
If the first point is answered in the negative the second point need not be answered in the abstract
On behalf of the respondents it has been submitted that assuming without conceding that the discriminatory provisions of the Act were applied in the case of the assessee before he asked for a settlement the materials on record show that he never objected to the procedure adopted voluntarily asked for a settlement got by the settlement the benefit
of reducing his liability for both tax and penalty and paid without demur the following instalments some even after Muthia s decision 1  1 1955 2 SCP 1247
584 Payments made up to April 55 10000 Payment made on 10 5 55 5000 19 6 55 5000 7 7 55 5000 13 8 55 5OOO 7 9 55 5000 15 10 55 5000 10 11 55 5000 15 12 55 5000 8 2 56 5000 13 2 56 5000 7 3 56 5000 14 5 56 5000 19 5 56 5000 13 6 56 5000 6 8 56 5000 7 9 56 5000 9 10 56 5000 10 11 56 5000 23 12 56 5000 14 1 57 5000 29 3 57 5000 4 6 57 5000 8 9 57 8000 128000 The learned Attorney General has in this connection referred us to the application for settlement which the assessee had made to the Commission wherein the following statements were made  in view of the fact that though no disclosure statement had been made before the submission of his reports by the authorised official still during the enquiry before the Commission the assessee and his auditors admitted their liability to tax in respect of the aforesaid sum of Rs 447915 the Commission was of the opinion that the assessee should be granted the benefit of a settlement on the lower concessional basis of payment of 75 per cent
of the undisclosed income by way of tax
The Commission was also of the opinion that the assessee should pay by way of penalty a sum of Rs 14064
585 The assessee accepts the conclusions of the Commission as regards the amount of income that escaped assessment the tax payable thereon and the penalty payable as aforesaid
 On the basis of these statements the learned Attorney General has argued that there is no foundation for the suggestion made on behalf of the assessee that the application for settlement was made  under the pressure of circumstances and in view of the coercive machinery of the Act He has submitted that the necessary facts on which the plea of waiver is founded have been established and he has relied on three cases decided by this Court where according to him the effect of the decisions was to accept such a plea in circumstances very similar Dewan Bahadur Seth Gopal Das Mohta vs The Union of India1 Baburao Narayanrao Sanas vs The Union of India 2 and Laxnanappa Hanumantappa Jamkhandi vs The Union of India 3 On behalf of the assessee it is contended on the contrary that the necessary facts to found a plea of waiver are totally absent in the present case and none of the aforesaid three decisions which were all pronounced on the same day proceed on a plea of waiver
Two of the three decisions referred to above relate to a settlement made under section 8A and the third to an order made under section 82 of the Act
All the three decisions were pronounced on applications made under article 32 of the Constitution and not on any appeal from an order of the revenue authority
In Gopal Das Mohta s case 1 the argument urged was inter alia that sections 5 6 7 and 8 of the Act were invalid and ultra vires as they contravened the provisions of articles 14 19 1 f and 31 of the Constitution and the prayer made was that the entire proceedings should be quashed as also all orders made by the Central Government in pursuance of the settlement under section 8A
In rejecting the argument and prayer Mahajan C J who delivered the  judgment of the Court said at p 776 1  2 3  74 586  In our judgment this petition is wholly misconceived
Whatever tax the petitioner has already paid or whatever is still recoverable from him is being recovered on the basis of the settlement proposed by him and accepted by the Central Government
Because Of his request for a settlement no assessment was made against him by following the whole of the procedure of the Income tax Act
In this situation unless and until the petitioner can establish that his consent was improperly procured and that he is not bound thereby he cannot complain that any of his fundamental rights has been contravened for which he can claim relief under article 32 of the Constitution
Article 32 of the Constitution is not intended for relief against the voluntary actions of a person
His remedy if any lies in other appropriate proceedings
 There has been a good deal of argument before us as to the true effect of the decision in Gopal Das Mohta s case 1
While I recognise that the reason stated for the decision viz that article 32 is not intended for relief against voluntary actions of a person comes very near to saying that a person has waived his protection in a given case since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him I am unable to hold that the decision proceeded strictly on the doctrine of waiver it is perhaps true to say that some of the observations made therein are of a  Delphic nature to be translated into concreteness by the process of litigating elucidation to borrow the words of Frankfurter J in Machinists vs Gonzales 2
It seems to me that the decision proceeded more upon the scope of article 32 than upon the doctrine of waiver
I am fortified in this view by the circumstance that in a decision given only a month earlier see Behram Khurshed Pesikaka vs The State of Bombay 3 the same learned Chief Justice expressed himself strongly though tentatively against introducing in our Constitution the doctrine of waiver as enunciated by some American Judges in construing the American Constitution without a full discussion of the matter
The report of Gopal 1 1955 1 SCP 773
2  619 3 653654
587 Das Mohta s case 1 does not contain any reference to the doctrine of waiver and it is obvious that no fuller discussion of the doctrine took place in that case
It is not therefore reasonable to hold that the effect of Gopal Das Mohta s case is to uphold the doctrine of waiver
Babu Rao s case 2 merely followed Gopal Das Mohta 1 and gave no separate reasons
Laxmanappa Jamkhandi s case 3 dealt with an order under section 82 of the Act and said at p 772  From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952 more than two years before this petition was presented in this Court
The assessment orders under the Income tax Act itself were made against the petitioner in November 1953
In these circumstances we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution
It was held by this Court in Ramjilal vs Income tax Officer Mohindar garh   that as there is a special pro
vision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law clause 1 of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax and inasmuch as the right conferred by article 265 is not a right conferred by Part III of the Constitution it could not be enforced under Article 32
In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court
 Here again there is no reference to the doctrine of waiver and the case was decided on the ambit and scope of article 32 of the Constitution
I would hold therefore that the decisions of this Court relied on by the learned Attorney General do 1  2 31955 1 SCR769
588 not help him in establishing waiver
Let me now examine the circumstances on which the learned Attorney General founds his plea of waiver
Indeed it is true that the assessee submitted to the discriminatory procedure applied to him by the Commission he also asked for a settlement under which he agreed to pay 75 of his alleged tax liability and a small amount of penalty he made some payment in instalments even after Muthia s decision in December 1955
Do these circumstances amount to waiver  It is to be remembered that in 1953 1954 when the discriminatory procedure of the Act was applied to him and the report against him was made by the Commission on which the settlement is based the assessee did not know nor had it been declared by a court of competent jurisdiction that section 51 of the Act was ultra vires
In his application for a settlement he said clearly in paragraph 3 that the Commission announced it as its view that the income profits and gains that had escaped assessment in the hands of the assessee was Rs 447915
The assessee also knew that under the Act this finding was final and binding on him
If in these circumstances the assessee made an application for settlement can it be said that it is a voluntary or intentional relinquishment of a known right  I venture to think not
It has been said that  waiver  is a troublesome term in the law
The generally accepted connotation is that to constitute  waiver  there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right or conduct such as warrants an inference of the relinquishment of a known right or privilege
Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right estoppel is a rule of evidence
See Dawson Bank Limited vs Nippon Menkwa Kabushiki Kaisha 1
What is the known legal right which the assessee intentionally relinquished or agreed to release in 1953 1954  He did not know then that any part of the Act was invalid and I doubt if in 1 1935 LR62 IA100108
589 the circumstances of this case a plea of waiver  can be founded on the maxim of ignorance of law is no excuse 
I do not think that the maxim ignorance of law is no excuse  can be carried to the extent of saying that every person must be presumed to know that a piece of legislation enacted by a legislature of competent jurisdiction must be held to be invalid in case it prescribes a differential treatment and he must therefore refuse to submit to it or incur the peril of the bar of waiver being raised against him
I do not think that such pre science is a necessary corollary of the maxim
On the contrary the presumption if any which operated at the relevant time was the presumption that a law passed by a competent legislature is valid unless declared unconstitutional by a court of competent jurisdiction
Furthermore I do not think that any inference of waiver can be retrospectively drawn from the instalments paid in 1956 57 particularly when the question of refund of the amounts already paid is no longer a live issue before us
It would I think be going too far to hold that every unsuspecting submission to a law subsequently declared to be invalid must give rise to a plea of waiver this would make constitutional rights depend for their vitality on the accident of a timely challenge and render them illusory to a very large extent
I hold therefore that the necessary foundation for sustaining the plea of waiver has not been laid in this case and the onus being on the respondents the plea must fail
In view of my finding that the necessary foundation on facts for sustaining the plea of waiver has not been laid in this case it becomes unnecessary to decide in the abstract the further question if a right guaranteed by any of the provisions in Part III of the Constitution can be waived at all
I am of the view that this Court should indeed be rigorous in avoiding to pronounce on constitutional issues where a reason
able alternative exists for we have consistently followed the two principles a that  the Court will not anticipate a question of constitutional law in 590 advance of the necessity of deciding it  Weaver on Constitutional Law p 69 and b  the Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied  ibid p 69
My Lord the Chief Justice and my learned brother Kapur J have however expressed the view that the fundamental right guaranteed under article 14 cannot be waived my learned brethren Bhagwati and Subba Rao JJ have expressed the view that none of the fundamental rights guaranteed by the Constitution can be waived
I greatly regret to have to say that I have come to a conclusion different from theirs with regard to this question and as they have thought fit to express their views on it proceed now to explain why I have come to a conclusion different from those of my learned brethren on this question
This question was mooted though not fully answered in Behram Khurshed Pesikaka s case 1
Venkatarama Aiyar J expressed his views at pages 638 to 643 of the report
Mahajan C J with whom Mukherjea Vivian Bose and Ghulam Hasan JJ concurred expressed his views at pages 651 to 655 of the report and my Lord the Chief Justice as Das J reserved his opinion on the question
The view which Venkatarama Aiyar J expressed was this if the constitutional provision which has been infringed affects the competence of the legislature which passed the law the law is a nullity as for example when a State enacts a law which is within the exclusive competence of the Union when however a law is within the competence of the legislature which passed it and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals it is not a nullity but is merely unenforceable such unconstitutionality can be waived and in that case the law becomes enforceable
He said that in America this principle was well settled and he referred to Cooley on Constitutional Limitations Volume 1 pages 368 to 371  Willis on Constitutional Law at 1  653 654 591 pages 524 531 542 and 558 Rottschaefer on Constitutional Law at pages 28 and 29 30
He then referred to certain American decisions in support of his views and then said  The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals 
It is open to any person whose rights have been infringed to waive it and when there is waiver there is no legal impediment to the enforcement of the law
It will be otherwise if the statute was a nullity in which case it can neither be waived nor enforced
If then the law is merely unenforceable and can take effect when waived it cannot be treated as non est and as effaced out of the statute book
 The contrary view expressed by Mahajan C J can be best explained in his own words  We think that it is not a correct proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power
It is axiomatic that when the lawmaking power of a State is restricted by a written fundamental law then any law enacted and opposed to fundamental law is in excess of the legislative authority and is thus a nullity
Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them
They represent but two aspects of want of legislative power
The legislative power of the Parliament and the State legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution
 His Lordship then referred to article 13 of the Constitution and said that it was a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which came into conflict with Part III of the Constitution
His Lordship added  In our opinion the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter 
Without finally expressing an opinion on this question we 592 are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of the Constitution
We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice social economic and political liberty of thought expression belief faith and worship equality of status and of opportunity
These fundamental rights have not been put in the Constitution merely for individual benefit though ultimately they come into operation in considering individual rights
They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy
 It would appear that the two main reasons which Mahajan C J gave in support of the views expressed by him were these
Firstly he held that the effect of article 13 of the Constitution was to prohibit the State from making any laws which came into conflict with Part III of the Constitution and he recognised no such distinction as was drawn by Venkatarama Aiyar J between absence of legislative power that is incompetence of the legislature and non observance of provisions which operate merely as a check on the exercise of legislative power
He thought that absence of legislative power and check on the exercise of legis lative power were both aspects of want of legislative power
Secondly he referred to the preamble and the scheme of Part III of the Constitution in support of his view that the doctrine of waiver did not apply
I shall take these reasons in the order in which I have stated them
First as to the effect of article 13 of the Constitution
Article 13 is in two parts the first part deals with  all laws in force in the territory of India immediately before the commencement of this Constitution  and says that so far as such laws are inconsistent with the provisions of Part III they shall to the extent of such inconsistency be void the second part deals with laws made after the commencement of the Constitution and says that  the State shall not make any law which takes
away or abridges the rights conferred by Part III  of the Constitution and any law made in contravention of cl
2 of article 13 shall to the extent of the contravention be void
It seems clear to me that the Article itself recognises the distinction between absence of legislative power which will make the law made by an incompetent legislature wholly void and exercise of legislative power in contravention of a restriction or check on such power which will make the law void to the extent of the inconsistency or contravention
The use of the words  to the extent of the inconsistency  and  to the extent of the contravention  indubitably points to such a distinction and indeed this was pointed out in Bhikaji Narain Dhakras vs The State of Madhya Pradesh 1
This was an unanimous decision of this Court and several earlier decisions including the decision in Kesavan Madhava Menon s case 2 on which Mahajan C J placed so much reliance were considered therein
The decision in Behram Khurshed Pesikaka 3was also considered and then the following observations were made with regard to article 13 of the Constitution at p 598  Article 131 by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book
Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution as was held in Keshavan Madhava Menon s case
The law continued in force even after the commencement of the Constitution with respect to persons who were not citizens and could not claim the fundamental right
In short article 131 had the effect of nullifying or rendering the existing law which had become inconsistent with article 191g read with el
6 as it then stood ineffectual nugatory and devoid of any legal 1 1055 2 SCR 589 2  3 653
654 75 594 force or binding effect only in respect of the exercise of the fundamental right on or after the date of the commencement of the Constitution 
All lawsexisting or future which are inconsistent with the provisions of Part III of our Constitution are by the express provision of article 13 rendered void I to the extent of such inconsistency 
Such laws were not dead for all purposes
 The aforesaid view expressed in Bhikaji Narain s case 1 was accepted in many later decisions including the decision in Muthia s case 2
The same distinction was again referred to in another unanimous decision of this Court in The State of Bombay vs RMD Chamarbaugwala 3 where at p 885 it was observed The Court of Appeal has rightly pointed out that when the validity of an Act is called in question the first thing for the court to do is to examine whether the Act is a law with respect to a topic assigned to the particular Legislature which enacted it
if it is then the court is next to consider whether in the case of an Act passed by the Legislature of a Province now a State its operation extends beyond the boundaries of the Province or the State for under the provisions conferring legislative powers on it such Legislature can only make a law for its territories or any part thereof and its laws cannot in the absence of a territorial nexus have any extra territorial operation
If the impugned law satisfies both these tests then finally the court has to ascertain if there is anything in any other part of the Constitution which places any fetter on the legislative powers of such Legislature
The impugned law has to pass all these three test
 Therefore the mere use of the word 6 void  in article 13 does not necessarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of our Constitution
Under the American Constitution also a law made in violation of a constitutional guarantee is struck down because under article VI of that Constitution  the Constitution and the laws of the United States which 1  2  3  595 shall be made in pursuance thereof  shall be the supreme law of the land
 I am unable therefore to accept the view that article 13 shows that the doctrine of waiver can never be applied in respect of the provisions in Part III of the Constitution
Let me now go to the second reason
Is there any thing in the preamble and the scheme of our Constitution with particular reference to Part III which will make the doctrine of waiver inapplicable  Let me first place the two preambles side by side Premple to our Premple to the American Constitution
Constitution1787
We the people of India We the people of the United having solemny resolved to States in order to form a constitute India into a so more perfect Unionestablish vereign democratic republic justiceinsure domestic tra and to secure to all its ci nquillityprovide for the tizensjusticesocialecc common defencepromote the nomic and political liber general welfareand secure ty of thoughexpression the blessing of liberty to belieffaith and worship ourselves and our posterity equality of status and of do ordain and establish opportunityand to promote this Constitution for the among them all fraternity United State of America assuring the dignity of the individual and the unity of the nationin our Constitu ent Assemply this twenty sixth day of November1949 do hereby adoptenact and give to ourselves this Co nstitution
 596 American Constitution were  a to form a more perfect Union b to establish justice c to insure domestic tranquillity d to promote general welfare and e to secure the blessings of liberty
In our Constitution the emphasis is on the Welfare State on Justice Liberty Equality and Fraternity
But the question before us is the limited question of the application of the doctrine of waiver
I do not find any
thing in the two preambles which will make the doctrine applicable in one case and not applicable in the other
It is necessary to refer here to one important distinction between the two Constitutions
Speaking broadly the American Constitution of 1787 except for defining the enumerated powers of the Federal Government and limiting the powers of the States was an outline of government and nothing more
Its provisions were written in general language and did not provide minute specifications of Organisation or power
It contemplated subsequent legislation and interpretation for carrying the provisions into effect
In other words it was early recognised that the Constitution was not self executing
The Indian Constitution is more detailed and in Part III of the Constitution are provisions which not merely define the rights but also state to what extent they are subject to restrictions in the interests of general welfare etc
In other words there is an attempt at adjustment of individual rights with social good and in that sense the limitations or restrictions are also defined
But I do not think that this distinction has any particular bearing on the question at issue before us
The rights as also the restrictions are justiciable and an interpretation of the rights given and of the restrictions imposed by courts of competent jurisdiction is contemplated
Indeed I recognise that there is a constitutional policy behind the provisions enacted in Part III of the Constitution
In a sense there is a legislative policy in all statutory enactments
In my opinion the crucial question is not whether there is a constitutional or legislative policy behind a particular provision but the question is is the provision meant 597 primarily for the benefit of individuals or is it for the benefit of the general public  That distinction has I think been recognised in more than one decision
Take for example an ordinary statutory enactment like section 80 of the Code of Civil Procedure which says that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after a notice in writing has been given etc
There is undoubtedly a reason of public policy behind this provision but it is open to the party for whose benefit the vision has been made to waive notice and indeed the party may be estopped by his conduct from pleading the want of notice
As the Privy Council pointed out in AL
Villavar Chettiar vs Government of the Province of Madras 1 there is no inconsistency between the propositions that the provisions of a section are mandatory and must be enforced by the court and that they may be waived by the authority for whose benefit they are provided
The question then is is there anything in the statute which militates against the application of the doctrine of waiver to such right subject to the safeguards and precautions necessary for the application of the doctrine provided the right is for the benefit of individuals  I am conscious that rights which the Constitution itself characterises as fundamental must be treated as such and it will be wrong to whittle them down
But are we whittling down fundamental rights when we say that the question of waiver of fundamental rights cannot be answered in the abstract by a general affirmative or a general negative the question must always depend on a the nature of the right guaranteed and b the foundation on the basis of which the plea of waiver is raised
It is to be remembered that the rights guaranteed by Part III of the Constitution are not confined to citizens alone
Some of the rights are guaranteed to non citizens also
Moreover they are not all rights relating to justice liberty equality and fraternity some of the provisions define the rights A 1947 LR 74 IA 223 228
698 while others indicate the restrictions or checks subject to which the rights are granted
Article 33 for example does not give any right to any person on the contrary it gives power to Parliament to modify the rights conferred by Part III in their application to persons
Article 34 lays down a conferred by Part III while in any area
It is not there fore quite correct to say that all the provisions in Part III grant fun amental rights though the heading is Fundamental Rights 
There is I think a three fold classification 1 a right granted by an ordinary statutory enactment 2 a right granted by
the Constitution and 3 a right guaranteed by Part III of the Constitution
With regard to an ordinary statutory right there is I think no difficulty
It is well recognised that a statutory right which is for the benefit of an individual can in proper circumstances be waived by the party for whose benefit the provision has been made
With regard to a constitutional right it may be pointed out that there are several provisions in our Constitution which do not occur in Part III but which yet relate to certain rights take for example the rights relating to the Services under the Union and the States in Part XIV
I do not think that it can be seriously contended that a right which is granted to a Government servant for his benefit cannot be waived by him provided no question of jurisdiction is involved
I may refer in this connection to the provisions in Part XIII which relate to trade commerce and intercourse within the territory of India
These provisions also impose certain restrictions on the legislative powers of the Union and of the States with regard to trade and commerce
As these provisions are for the benefit of the general public and not for any particular individual they can not be waived even though they do not find place in Part III of the Constitution
Therefore the crucial question is not whether the rights or restrictions occur in one part or other of the Constitution
The crucial question is the nature of the right given is it for the benefit of individuals or is it for the general public 599 That in my opinion is the true test
I may here state that the source of the right contractual or statutory is not the determining factor
The doctrine of waiver is grounded on the principle that a right statutory or otherwise which is for the benefit of an individual can be waived by him
I am aware that a right which is for the benefit of the general public must in its actual operation relate to particular individuals in the same way as a right for the benefit of individuals will in its actual operation arise in connection with individual A or individual B
The test is not whether in its operation it relates to an individual
The test is for whose benefit the right has been primarily granted for the benefit of the general public or for individuals  Let me now apply this test to some of the provisions in Part III of the Constitution
These provisions have been classified under different heads 1 right to equality 2 right to freedom 3 right against exploitation 4 right to freedom of religion 5 cultural and educational rights 6 right to property and 7 right to constitutional remedies
There can be no doubt that some of these rights are for the benefit of the general public
Take for example article 23 which prohibits traffic in human beings etc  so also article 24 which says that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment
I do not wish to multiply examples and it is sufficient to state that several of these rights are rights which are meant primarily for the benefit of the general public and not for an individual
But can we say the same thing in respect of all the rights  Let us take article 31 which says that no person shall be deprived of his property save by authority of law and that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation etc
Take a case where a man s property is acquired under a law which does not fix the amount of compensation or specify the principles on which or the manner in which the compensation is to be determined and given
The man whose 600 property is taken may raise no objection to the taking of his property under such law
Indeed he may expressly agree to Government taking his land for a public purpose under the law in question though it does not comply with the requirements as to compensation
Can such a man after two or three years change his mind and say that the law is invalid and his land on which a school or a hospital may have been built in the meantime should be restored to him because he could not waive his fundamental right  In my opinion if we express the view in the abstract that no fundamental right can ever be waived many startling and unforeseen results may follow
Take another example
Suppose a man obtains a permit or a licence for running a motor vehicle or an excise shop
Having enjoyed the benefit of the permit for several years is it open to him to say when action is proposed to be taken against him to terminate the licence that the law under which the permit was granted to him was not constitutionally valid  Having derived all the benefit from the permit granted to him is it open to him to say that the very Act under which a permit was granted to him is not valid in law  Such and other startling results will follow if we decide in the abstract by a general negative that a fundamental right can never be waived
Take article 32 which is a right to a constitutional remedy namely the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III
It is now well settled by several decisions of this court that the right under article 32 is itself a fundamental right
Suppose a person exercises that right and initiates appropriate proceedings for enforcement of a fundamental right  Later he thinks better of it and withdraws his application
Still later he changes his mind
Can he then say that he could not waive his right under article 32 and the order passed on his application for withdrawal had no legal validity  We may take still another example
Under article 301 of the Constitution all minorities whether based on religion or language have the right to establish and administer educational institutions of 601 their choice
Suppose there is a minority educational institution and the minority has the right to administer that institution but they want grant from Government
The minority may have to surrender part of its right of administration in order to get Government aid
Can the minority waive its right Such a question arose for consideration in the advisory opinion which we gave in connection with the Kerala Education Bill and  so far as I have been able to understand the effect of our opinion is that the minority can surrender part of its right of administration of a school of its own choice in order to get aid from Government
If we now hold that the minority can never surrender its right then the result will be that it will never be able to ask for Government aid
I do not see any such vital distinction between the provisions of the American Constitution and those of our Constitution as would lead me to the conclusion that the doctrine of waiver applies in respect of constitutional rights guaranteed by the American Constitution but will not apply in respect of fundamental rights guaranteed by the Indian Constitution
Speaking generally the prohibition in Part III is against the State from taking any action in violation of a fundamental right
The word State  in that Part includes the Government and Parliament of India as also the Government and Legislature of each of the States and also all local or other authorities within the territory of India or under the control of the Government of India
The American Constitution also says the same thing in effect
By article VI it states that the Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land
It is well settled in America that the first ten amendments to the original Con stitution were substantially contemporaneous and should be construed in pari materia
In many of the amendments the phraseology used is similar to the phraseology of the provisions of Part III of our Constitution
The position under the American Constitution is 76 602 well settled and a succinct statement of that position will be found in Rottschaefer on Constitutional Law pp 28 29
The learned author has summarised the position thus  There are certain constitutional provisions that may be waived by the person for whose protection they were intended
A person who has waived that protection in a given instance may not thereafter
raise the issue that his constitutional rights have been infringed in that instance since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him
A person who would otherwise be entitled to raise a constitutional issue is sometimes denied that right because he is estopped to do so
The factor usually present in these cases is conduct inconsistent with file present assertion of that right or conduct of such character that it would be unjust to others to permit him to avoid liability on constitutional grounds
A person may not question the constitutionality of the very provision on which he bases the right claimed to be infringed thereby nor of a provision that is an integral part in its establishment or definition
The acceptance of a benefit under one provision of an Act does not ordinarily preclude a person from asserting  the invalidity of another and severable provision thereof but there are exceptions to this rule
The  promoters of a public improvement have been denied  the right to contest the validity of the rule apportioning its cost over the benefited lands and a person who has received the benefits of a statute may not there  after assert its invalidity to defeat the claims of those against whom it has been enforced in his own favour
A state is estopped to claim that its own statute deprives it
of its property without due process of law but it is permitted to assert that its own statute invades rights that its constitution confers upon it
Prior inconsistent conduct will nothowever preclude a person from asserting the invalidity of an act if under all the circumstances its assertion involves no 603 unfairness or injustice to those against whom it is raised
 The learned Attorney General placed reliance on the following decisions 1 Pierce vs Somerset Railway 1 2 Wall vs Parrot Silver and Copper Company 2 3 Pierce Oil Corporation vs Phoenix Refining Company 3  4 Shepard vs Barron4  5 United States V Murdock5 6 Patton vs United States 6  and 7 Adams vs United States 7
The position in America is so well settled that I think it is unnecessary to examine the aforesaid decisions in detail
I need only refer to the observations of Frankfurter J in William A Adam s case supra
The observations were made in connection with a case where a trial was held without a jury at the request of the accused person himself in spite of the guarantee of Amendment VI
The observations were  What was contrived as protections for the accused should not be turned into fetters
To assert as an absolute that a layman no matter how wise or experienced he may be is incompetent to choose between judge and jury as the tribunal for determining his guilt or innocence simply because a lawyer has not advised him on the choice is to dogmatize beyond the bounds of learning or experience
 I have not been able to find any real reason on the basis of which the decisions given above with regard to the American Constitution can be held to be inapplicable to similar cases arising under the Indian Constitution
Two subsidiary reasons have been given for holding that the position under the Indian Constitution is different
One is that ours is a nascent democracy and therefore the doctrine of waiver should not apply
With respect I am unable to concur in this view
I do not think that we shall be advancing the cause of democracy by converting a fundamental right into a fetter or using it as a means for getting out of an 1  2 1917 244US407
3 1922 259US125
4 1904 194US553
5 1931 284US141
6 1930 281US276
7 1942 317US269
604 agreement freely entered into by the parties
I appreciate that waiver is not to be light heartedly applied and I agree that it must be applied with the fullest rigour of all necessary safeguards and cautions
What I seriously object to is a statement in the abstract and in absolute terms that in no circumstances can a right given by any of the provisions in Part III of the Constitution be waived
Another point taken is that the provisions in Part III embody what are called natural rights  and such rights have been retained by the people and can never be interfered with
I am unable to acquiesce in this
The expression natural rights  is in itself somewhat vague
Sometimes rights have been divided into natural rights  and civil rights  and natural rights  have been stated to be those which are necessarily inherent or innate and which come from the very elementary laws of nature whereas civil rights are those which arise from the needs of civil as distinguished from barbaric communities
I am unable however to agree that any such distinction is apparent from the provisions in Part III of our Constitution all the rights referred to therein appear to be created by the Constitution
I do not think that Locke s doctrine of natural rights  which was perhaps the authority for the American Declaration of Independence played any part in the enactment of the provisions of Part III of our Constitution
The doctrine which has long since ceased to receive general acceptance has been thus explained by E W Paterson see Natural Law and Natural Rights Southern Methodist University Press Dallas 1955 p 61  The theory of natural rights for which we are indebted to the seventeenth century English philosopher John Locke is essentially different from the theories of natural law just discussed in that it lacked the two important characteristics above mentioned the concept of an immutable physical order and the concept of divine reason 
He begins with the purpose of justifying the existence of a government with coercive powers
What inconveniences would arise if there were no government Men would live in a  stage of nature  to avoid confusion with the 605 political state I shall call this a condition of nature 
In such a condition man would be free to work to enjoy the fruits of his labour and to barter with others he would also be free to enforce the law of nature whose precepts Locke did not define against every other man
Since Locke was an optimist about human nature he thought men would get along pretty well in this lawless condition
Yet the condition of nature is for Locke a fiction like the assumption of a frictionless machine in mechanics
The chief disadvantages that men in this condition would suffer were he thought the absence of an established law the absence of a known and impartial magistrate to settle disputes the absence of a power sufficient to execute and enforce the judgment of the magistrate
Moved by these inconveniences men would enter into a social compact with each other whereby each would transfer to a third person the government such rights over his person and property as the government must have in order to remove these inconveniences
All other rights privileges and immunities he reserved as a grantor of land conveys the fee simple to his son and reserves a life estate to himself
These reserved rights were natural  rights because they had originated in the condition of nature and survived the social compact
 There are in my opinion clear indications in Part III of the Constitution itself that the doctrine of  natural rights  had played no part in the formulation of the provisions therein
Take articles 33 34 and 35 which give Parliament power to modify the rights conferred by Part III
If they were natural rights the Constitution could not have given power to Parliament to modify them
Therefore I am of the view that the doctrine of natural rights  affords nothing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution
The true position as I conceive it is this where a right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not impinge on the right of others it 606 can be waived provided such waiver is not forbidden by law and does not contravene public
policy or public morals
In the case before us I have held that there is no foundation on facts to sustain the plea of waiver
Therefore I would allow the appeal with costs
The order of the Commissioner of Income tax Delhi dated January 29 1958 must be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5 1954 must be quashed
SUBBA RAO J
I have had the advantage of perusing the judgments of my Lord the Chief Justice and my learned brother section K Das J
I agree with their conclusion but I would prefer to express my opinion separately in regard to the question of the applicability of the doctrine of waiver to the fundamental rights
This case raises a most serious and important question viz whether the doctrine of waiver operates on the fundamental rights enshrined in the Constitution a question not confined to the immediate purpose of this litigation but to the public in general
The question is bound to arise frequently and the varying observations already expressed by the learned Judges of this Court would lend scope for conflicting decisions involving parties in unnecessary litigation and avoidable hardship
The question was directly raised and fully argued before us
In the circumstances I cannot share the opinion of my learned brother section K Das J that this Court should avoid a decision on this question and leave it to be decided in a more appropriate case
The facts have been fully stated by my Lord the Chief Justice in his judgment and I need not restate them
The learned Attorney General contended that in the American Law the principle of waiver was applied to rights created by the Constitution except in cases where the protection of the rights was based upon public policy and that by the same analogy if no public policy was involved even in India the person 607 affected by the infringement of the fundamental rights could waive the constitutional protection guaranteed to him
It was said that in the present case the appellant waived his fundamental right under article 14 of the Constitution as the right was only in respect of his liability to tax and he could legitimately waive it
To appreciate this argument it would be convenient at the outset to notice the American Law on the subject
Certain rights which are sometimes described as the Bill of Rights have been introduced by the Amendment to the Constitution of America
They declare the rights of the people of America in respect of the freedom of religion speech press assemblage and from illegal seizurs
They guarantee trial by jury in certain criminal and civil matters
They give protection against self incrimination
The Fifth Amendment of the Constitution of the United States prescribes that no person shall be deprived of life
 liberty or property without due process of law nor shall private property be taken for public use without just compensation
The Fourteenth Amendment of the Constitution introduces the rule of due process as a protection against the State action
The said amendments are intended as a protection to citizens against the action of the Union and the States
Though the rights so declared are general and wide in their terms the Supreme Court of America by a long course of judicial interpretation having regard to the social conditions  in that country has given content to those rights and imposed limitations thereon in an attempt to reconcile individual rights with social good by evolving counterbalancing doctrines of police power eminent domain
and such others
During the course of the evolution
of the law attempts were made to apply the doctrine of waiver to the provisions of the Constitution of America
American Courts applied the doctrine with great caution and in applying the same laid down definite principles
The said principles were culled out from the various decisions and clearly summarized in the authoritative text books on the Constitution of America under different heads 608 WILLIS ON CONSTITUTIONAL LAW  1
Self incrimination The privilege against self incrimination  like any other privilege is one which may be waived
Double jeopardy Double jeopardy is a privilege and may be waived expressly or impliedly
Immunity against unreasonable searches and seizures The immunity is one which may be waived and by consent one can make a search and seizure reasonable
Jury Trial The United States Supreme Court  held that neither a jurisdictional question nor the interest of the State was involved but only the privilege and right of the accused and that these were subject to waiver in accordance with the usual rules
Due Process of Law as a matter of jurisdiction In order to delimit personal liberty by exercising social control the branch of the government undertaking to do so must have jurisdiction
If it does not have jurisdiction it is taking personal liberty life liberty or property without due process of law
To this rule there are no exceptions
It cannot be waived COOLEY S CONSTITUTIONAL LIMITATIONS  Where a constitutional provision is designed for the protection solely of the property rights of the
citizen it is competent for him to waive the protection and to consent to such action as would be invalid if taken against his will
In criminal cases the doctrine that a constitutional privilege may be waived must be true to a very limited extent only
A party may consent to waive rights of
property but the trial and punishment for
public offences are not within the provinces of individual con
sent or agreement
CORPUS JURIS SECUNDUM It has been stated supra p 1050 note 32 that the doctrine of waiver extends to rights and privileges 609 of any character and since the word  waiver  covers every conceivable right it is the general rule that a person may waive any matter which affects his property and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled whether secured by contract conferred by statute or guaranteed by constitution provided such rights and privileges rest in the individual are intended for his sole benefit do not infringe on the rights of others and further provided the waiver Of the right or privilege is not forbidden by law and does not contravene public policy and the principle is recognized that everyone has a right to waive and agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large 
As a general rule rights relating to procedure and remedy are subject to waiver but if a right is so fundamental in its nature as to be regarded by the state as vitally integrated in immemorially established processes of the administration of justice it cannot be waived by anyone
The cases cited at the Bar illustrate the aforesaid principles
The doctrine was applied to the obligations under a contract in Pierce vs Somerset Railway 1 to deprivation of property without due process of law in Pierce Oil Corporation vs Phoenix Refining Company2 and Shepard vs Barron 3 to trial by jury in Patton vs United States 4 and Adams vs United States5 and to self incrimination in United States vs Murdock 6
It is true as the learned counsel for the appellant contended that in some of the aforesaid decisions observations are in the nature of obiter but they clearly indicate the trend of judicial opinion in America
1 1898 43 L Ed 316  2   3   4   5  6   77 610 The American Law on the subject may be summarized thus The doctrine of waiver can be invoked when the Constitutional or Statutory guarantee of a right is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right
But if the privilege conferred or the right created by the statute is solely for the benefit of the individual he can waive it
But even in those cases the Courts invariably administered a caution that having regard to the nature of the right some precau tionary and stringent conditions should be applied before the doctrine is invoked or applied
This leads me to the question whether the fundamental rights enshrined in the Indian Constitution pertain to that category of rights which could be waived
To put it differently whether the Constitutional guarantee in regard to the fundamental rights restricts or ousts the jurisdiction of the relevant authorities under the Constitution to make laws in derogation of the said rights or whether the said rights are for the benefit of the general public
At the outset I would like to sound a note of warning
While it is true that the judgments of the Supreme Court of the United States are of a great assistance to this Court in elucidating and solving the difficult problems that arise from time to time it is equally necessary to keep in mind the fact that the decisions are given in the context of a different social economic and political set up and therefore great care should be bestowed in applying those decisions to cases arising in India with different social economic and political conditions
While the principles evolved by the Supreme Court of the United States of America may in certain circum stances be accepted their application to similar facts in India may not always lead to the same results
It is therefore necessary to consider the nature of the fundamental rights incorporated in the Indian Constitution the conditions of the people for whose benefit and the purpose for which they were created and the effect of the laws made in violation of those rights
The Constitution of India in its preamble promises to secure to all citizens justice social economic and 611 political liberty of thought expression belief faith and worship equality of status and of opportunity and to promote among them all fraternity assuring the dignity of the individual and the unity of the nation
One of the things the Constitution did to achieve the object is to incorporate the fundamental rights in the Constitution
They are divided into seven categories i right to equality articles
14 to 18 ii right to freedom articles
19 to 22 iii right against exploitation articles
23 and 24 iv right to freedom of religion articles 25 to 28  v cultural and educational rightsArts
29 and 30 vi right to property articles
31 31 A and 31B and vii right to Constitutional remediesArts
32 to 35
Patanjali Sastri J as he then was pointed out in Gopalan vs The State of Madras1 that fundamental rights contained in Part III of the Constitution are really rights that are still reserved to the people after the delegation of rights by the people to the institutions of Government both at the Centre and in the States created by the Constitution
Article 13 reads  1 All laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the pro
visions of this Part shall to the extent of such inconsistency be void
2 The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void
 This Article in clear and unambiguous terms not only declares that all laws in fore before the commencement of the Constitution and made thereafter taking away or abridging the said rights would be void to the extent of the contravention but also prohibits the State from making any law taking away or abridging the said rights
Part III is therefore enacted for the benefit of all the citizens of India in an attempt to preserve to them their fundamental rights against infringement by the institutions created by the Constitution for without that safeguard the objects 1  612 adumbrated in the Constitution could not be achieve 
For the same purpose the said chapter imposes a limitation on the power of the State to make laws in violation of those rights
The entire part in my view has been introduced in public interest and it is not proper that the fundamental rights created under the various Articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit
Part III reflects the attempt of the Constitution makers to reconcile individual freedom with State Control
While in America this process of reconciliation was allowed to be evolved by the course of judicial decisions in India the fundamental rights and their limitations are crystallized and embodied in the Constitution itself while in America a freehand was given to the judiciary not only to evolve the content of the right but also its limitations in the Indian Constitution there is not much scope for such a process
The Court cannot therefore import any further limitations on the fundamental rights other than those contained in Part III by any doctrine such as  waiver  or otherwise
I would therefore hold that the fundamental rights incorporated in Part III of the Constitution cannot be waived
It is said
that such an inflexible rule would in certain cases defeat the very object for which the fundamental rights are created
I have carefully scrutinized the Articles in Part III of the Constitution of India and they do not in my view disclose any such anomaly or create unnecessary hardship to  the people for whose benefit the rights are created
Article 14 embodies the famous principle of equality before the law and equal protection of the laws and articles 15 to 18 and article 292 relate to particular applications of the rule
The principle underlying these Articles is the mainspring of our democratic form of government and it guarantees to its citizens equal protection in respect of both substantive and procedural laws
If the doctrine of waiver is engrafted to the said fundamental principles it will mean that a citizen can agree to be discriminated  When one realizes the unequal 613 positions occupied by the State and the private citizen particularly in India where illiteracy is rampant it is easy to visualize that in a conflict between the State and a citizen the latter may by fear of force or hope of preferment give up his right
It is said that in such a case coercion or influence can be established in a Court of law but in practice it will be well nigh impossible to do so
The same reasoning will apply to articles 15 and 16
article 17 illustrates the evil repercussion of the doctrine of waiver in its impact on the fundamental rights
That Article in express terms forbids untouchability obviously a person cannot ask the State to treat him as an untouchable
Article 19 reads 1 All citizens shall have the right a to freedom of speech and expression b to assemble peaceably and without arms c to form associations or unions d to move freely throughout the territory of India  eto reside and settle in any part of the territory of India f to acquire hold and dispose of property  and g to practice any profession or to carry on any occupation trade or business
 The right to freedom is the essential attribute of a citizen under democratic form of government
The freedoms mentioned in article 19 are subject to certain restrictions mentioned in cls
2 to 6 of that Article
So far as the freedoms narrated in sub cls
a to g of Cl
1 of article 19 are concerned I cannot visualise any contingency where a citizen would be in a worse position than he was if he could not exercise the right of waiver
In regard to freedom to acquire hold and dispose of property a plausible argument may be advanced namely that a citizen should have a right to waive his right to acquire hold and dispose of property  for otherwise he might be compelled to acquire and hold his property even if he intended to give it up There is an underlying fallacy in this argument
The Article does not compel a citizen to acquire hold and 614 dispose of property just as it does not compel a per
son to do any of the acts covered by the other freedoms
If he does not want to reside in any part of the territory of India or to make a speech or to practise any profession he is at liberty not to do any of these things
So too a person may not acquire the property at all or practise any profession but if he seeks to acquire property or practise any profession he cannot be told that he has waived his right at an earlier stage to acquire property or practise the profession
A freedom to do a particular act involves the freedom not to do that act
There is an essential distinction between the non exercise of a right and the exercise of a right subject to the doctrine of waiver
So understood even in the case of the right covered by sub cl
f of cl
1 there cannot be any occasion when a citizen would be worse off than when he had no fundamental rights under the Article
The preservation of the rights under article 19 without any further engrafting of any limitations than those already imposed under the Constitution is certainly in the interest of the public  for the rights are essential for the development of human personality in its diverse aspects
Some comment is made in regard to the right covered by el
3 of article 20 and it is asked that if a person has no liberty to waive the protection under that clause he could not give evidence even if he wanted to give it in his own interest
This argument ignores the content of the right under cl
3 of article 20
The fundamental right of a person is only that he should not be compelled to be a witness against himself
It would not prevent him from giving evidence voluntarily
Under article 21 no person shall be deprived of his life or personal liberty except according to procedure established by law and article 22 gives protection against arrest and detention in certain cases
I do not think that any situation can be conceived when a person could waive this right to his advantage
Article 231 prohibits traffic in human beings and forced labour
It is not suggested that a person can waive this Constitutional protection
So too the right under article 24 which prohibits employment 615 of children in factories cannot be waived
That apart so far as this Article is concerned no question of waiver can arise as a child cannot obviously waive his right under this Article
Article 25 gives guarantee for religious liberty subject to certain restrictions contained therein
It declares that all persons are equally entitled to freedom of conscience and the right freely to profess practise and propagate religion
This right is certainly conceived in the public interest and cannot be waived
So too freedom to manage religious affairs freedom as to payment Of taxes for promotion of any particular religion and freedom as to attendance at religious instruction or religious worship in certain educational institutions are all conceived to enforce the religious neutrality of the State and it cannot be suggested that they are not in public interest
The cultural and educational rights of the minorities and their right to establish and administer educational institutions of their choice are given for the protection of the rights of the minorities and it cannot be said that they are not in public interest
Article 31 which prohibits the State from depriving a person of his property save by authority of law or to acquire any property without paying compensation is intended to protect the properties of persons from arbitrary actions of the State
This Article is conceived in the interest of the public and a person cannot say that he can be deprived of his property without authority of law or that his land can be acquired without compensation
It is suggested that if a person after waiving his fundamental right to property and allowing the State to incur heavy expenditure in improving the same turns round and claims to recover the said property the State would be put to irreparable injury
Firstly no such occasion should arise as the State is not expected to take its citizens  property or deprive them of their property otherwise than by authority of law
Secondly if the owner of a property intends to give it to the State the State can always insist upon conveying to it the said property in the manner known to law
Thirdly other remedies may be open to the 616 recover compensation or damages for the improvements bonafide made or the loss incurred having regard to the circumstances of a particular case
These considerations in my view are of no relevance in considering the question of waiver in the context of fundamental rights
By express provisions of the Constitution the State is prohibited from making any law which takes away or abridges the rights conferred by Part III of the Constitution
The State is not therefore expected to enforce any right contrary to the Constitutional prohibition on the ground that the party waived his fundamental right
If this prohibition is borne in mind no occasion can arise when the  State would be prejudiced
The prejudice if any to the State would be caused not by the non application of the doctrine of waiver but by its own action contrary to the Constitutional prohibition imposed on it
It is then said that if the doctrine of waiver is to be excluded a person can apply to the Supreme Court under article 32 of the Constitution for the relief provided therein withdraw the petition get the order of the Supreme Court dismissing it and then apply over again for issue of a writ in respect of the same right
The apprehension so expressed is more imaginary than real for it has no foundation either in fact or in law
When an application is dismissed for whatever reason it may be whether on merits or on admission  the order of the Court becomes final and it can be reopened only in the manner prescribed by law
There is no scope for the application of the doctrine of waiver in such a cage
Articles 33 and 34 contain some of the Constitutional limitations on the application and the enforcement of the fundamental rights
The former
Article confers power on Parliament to modify the rights conferred by Part III of the Constitution in their application to facts and the latter enables it to impose restrictions on the rights conferred by  that Part while martial law is in force in any area
These two Articles therefore do not create fundamental rights but impose limitations thereon and I 617 cannot appreciate the argument that their presence in Part III either derogates from the content of the fundamental rights declared therein or sustains the doctrine of waiver in its application to the said rights
Article 35 confers on the Parliament the power to legislate for giving effect to the provisions of Part III to the exclusion of the Legislatures of the States
This Article also does not create a fundamental right but provides a machinery for enforcing that right
A startling result it is suggested would flow from the rejection of the doctrine of waiver and the suggestion is sought to be illustrated by the following example  A person takes a permit for several years from the State for running a motor vehicle or an excise shop
Having enjoyed the benefit for several years and when action is proposed to be taken against him to terminate the licence he contends that the law under which the permit was granted to him offended his fundamental rights and therefore constitutionally not valid
It is asked whether it would be open to him to say that the very Act under which the permit was granted to him was not valid in law
To my mind this illustration does not give rise to any anomaly
Either a person can run a motor vehicle or an excise shop with licence or without licence
On the basis the law is valid a licence is taken and the motor vehicle is run under that licence and if that law offends his fundamental right and therefore void he continues to ran the business without licence as no licence is required under a valid law
The aforesaid illustration does not there
fore give rise to any anomaly and even if it does it does not affect the legal position
I have considered the various provisions relating to the fundamental rights with a view to discover if there is any justification for the comment that without the aid of the doctrine of waiver a citizen in certain circumstances would be in a worse position than that he would be if he exercised his right
I have shown that there is none
Nor is there any basis for the suggestion that the State would irreparably suffer under certain contingencies for any resulting hardship would be its 78 618 own making and could be avoided if it acted in accordance with law
A large majority of our people are economically poor educationally backward and politically not yet conscious of their rights
Individually or even collectively they cannot be pitted against the State organizations and institutions nor can they meet them on equal terms
In such circumstances it is the duty of this Court to protect their rights against themselves
I have therefore no hesitation in holding that the fundamental rights created by the Constitution are transcendental in nature conceived and enacted in national and public interest and therefore cannot be waived
That apart I would go further and hold that as section 51 of the Act XXX of 1947 was declared to be void by this Court in M Ct
Muthiah vs The Commissioner of Income tax Madras 1 the appellant can
not by the application of the doctrine of waiver validate the enquiry made under the said Act
It is suggested that there is a distinction between a case where the enactment is beyond the legislative competence Of the Legislature which made it and the case where the law is unconstitutional on the ground of existence of a constitutional limitation that while in the former case the law is null and void in the latter case the law is unenforceable and may be revived by the removal of the limitation by an amendment of the Constitution
On this distinction an argument is sought to be built to the effect that as in the present case section 51 of the Act XXX of 1947 was declared to be invalid only on the ground that it was hit by article 14 of the Constitution the law must be deemed to be on the statute book and therefore the appellant was within his right to waive his constitutional guarantee
I am unable to appreciate this argument
The scope of article 131 of the Constitution was considered by this Court in Keshavan Madhava Menon vs The state of Bombay 2
This Court by a majority held that article 131 of the Constitution does not make 1  2  619 existing laws which are inconsistent with the fundamental rights void ab initio but only renders such laws unenforceable and void with respect to the exercise of the fundamental rights on and after the date of commencement of the Constitution
Mahajan C J who was a party to that decision explained the word void  in article 131 of the Constitution in Behram Khurshed Pesikaka vs State of Bombay 1
He observed at page 652 thus  It is axiomatic that when the law making power of a State is restricted by written fundamental law then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity
Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them
They represent but two aspects of want of legislative power
The legislative power of Parliament and the State Legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights Chapter of the Constitution
 This decision in clear and unambiguous terms lays down that there cannot be any distinction on principle between Constitutional incompetency and Constitutional limitation
In either case the Act is void though in the latter case the pre constitutional rights and liabilities arising under the statute are saved
This Court again dealt with the meaning of the word void  in Bhikaji Narain Dhakras vs State of Madhya Pradesh 2
There the question was whether an Act Which was declared void on the ground of inconsist ency with the Constitution can be revived by any subsequent amendment to the Constitution removing the inconsistency
This Court answered the question in the affirmative
Das acting C J observed at page 598 thus  As explained in Keshavan Madhava Menon s case the law became void not in toto or for all purposes or for all times or for all persons but only to the extent of such inconsistency that is tosay to the extent it became inconsistent with the provisions of Part 1 2  620 III which conferred the fundamental rights on the citizens
It did not become void independently of the existence of the rights guaranteed by Part III
In Short Article 131 had the effect of nullifying or rendering the existing law which had become inconsistent with article 191g read with clause 6 as it then stood ineffectual nugatory and devoid of any legal force or binding effect only with the exercise of the fundamental right on and after the date of the commencement of the Constitution   
It is only as against the citizens that they remained in a dormant or moribund condition
In our judgment after the amendment of clause 6 of article 19 on the 18th June 1951 the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non citizens
 This judgment does not say anything different from that expressed in Keshavan Madhava Menon s case 1 nor does it dissent from the view expressed by Mahajan C J in Behram Khurshed s case 2
The problem that confronted the learned Judges was a different one and they resolved it by applying the doctrine of eclipse 
The legal position vis a vis the law declared to be void either on the ground of legislative incompetence or for the reason of constitu tional limitation as stated in the earlier decisions remains unshaken by this decision
So long as the inconsistency remains the law continues to be void at any rate vis a vis the fundamental rights of a person
We are not concerned in this case with the doctrine of revival for the inconsistency of section 51 of the Act with the fundamental right under article 14 of the Constitution has not been removed by any amendment of the Constitution
So long as it is not done the said section is void and cannot affect the fundamental rights of the citizens
In M Ct
Muthiah vs The Commissioner of Income tax Madras 3 it was declared that section 51 of Act XXX of 1947 was unconstitutional on the ground that it infringed the fundamental rights of the citizens under article 14 of the Constitution
1  2 3  621 Under article 141 of the Constitution the law declared by the Supreme Court is binding on all the Courts in India
It follows that the Income tax Commissioner had no jurisdiction to continue the proceedings against the appellant under Act XXX of 1947
If the Commissioner had no jurisdiction the appellant could not by waiving his right confer jurisdiction on him
The scope of the doctrine of waiver was considered by this Court in Behram Khurshed s case1
There a person was prosecuted for an offence under section 66b of the Bombay Prohibition Act and he was sentenced to one month s rigorous imprisonment
One of the questions raised there was whether section 13b of the Bombay Prohibition Act having been declared to be void under article 131 of the Constitution in so far as it affected the consumption or use of liquid medicinal or toilet preparation containing alcohol the prosecution was maintainable for infringement of that section
The Court held that in India once the law has been struck down as unconstitutional by the Supreme Court no notice can be taken of it by any Court because after it is declared as unconstitutional it is no longer law and is null and void
Even so it was contended that the accused had waived his fundamental right and therefore he could not sustain his defence
Mahajan C J delivering the judgment of the majority repelled this contention with the following observations at page 653  The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it
Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution
We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice social economic and political  liberty of thought expression belief faith and worship 1 622 equality of status and of opportunity
These fundamental rights have not been put in the Constitution merely for the individual benefit though ultimately they come into operation in considering individual rights
They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy
Reference to some of the articles inter alia Articles 151 20 21 makes the proposition quite plain
A citizen cannot get discrimination by telling the State You can discriminate  or get convicted by waiving the protection given under Articles 20 and 21
 On the question of waiver Venkatarama Aiyar J in his judgment before review considered the American decisions and was inclined to take the view that under our Constitution when a law contravenes the provisions intended for the benefit of the individual it can be waived
But the learned Judge made it clear in his judgment that the question of waiver had no bearing to any issue of fact arising for determination in that case but only for showing the nature of the right declared under article 191f and the effect in law of a statute contravening it
Das J as he then was in his dissenting judgment did not state his view on this question but expressly reserved it in the following words  In coming to the conclusion that I have I have in a large measure found myself in agreement with the views of Venkatarama Aiyar J on that part of the case
I however desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment particularly those relating to waiver of unconstitutionality the fundamental rights being a mere check on the legislative power or the effect of the declaration under article 131 being relatively void 
On those topics prefer to express no opinion on this occasion
 I respectfully agree with the observations of Mahajan C J
For the aforesaid reasons hold that the doctrine of waiver has no application in the case of fundamental rights under our Constitution
623 ORDER The appeal is allowed
The order of the Income Tax Commissioner Delhi dated January 29 1958 is set aside and all proceedings now pending for implementation of the order of Union Government dated July 5 1954 are quashed
The appellant shall get costs of this appeal


Summary:
The original occupant of the suit godowns had on 1101963 granted to the appellant a licence in respect of the premises and subsequently by a deed of assignment dated 1381966 assigned all its rights title and interest in the premises in favour of the appellant
The appellant had in the meantime by agreement dated 2731964 permitted the second respondent to store goods in the premises
The appellant thereafter requested the Corporation to recognise it as the principal occupant of the premises by means of a formal agreement
This request was at first rejected by the Corporation on the ground that the second respondent had been already in occupation of the premises
Subsequently the Corporation examined the terms and conditions of the agreement dated 2731964 and after satisfying itself the Corporation transferred the occupancy right to the appellant on the appellant executing a formal agreement dated 1761967
A notice dated 2571969 terminating tenancy in terms of the agreement dated 1761969 was served on the appellant
This was followed by an enquiry under the Bombay Municipal Corporation Act 1888 which resulted in the order of eviction dated 611971 the appellant being the principal tenant and the second respondent as a sub tenant
The enquiry officer acting as a delegate in terms of section 68 and exercising the power of Commissioner of the Municipal Corporation of Greater Bombay the first respondent under section 195B ordered eviction of the appellant on the ground of sub letting the premises
The enquiry officer on inspection found that the second respondent was in occupation of the premises as a sub lessee that the appellant 830 had sub let the premises contrary to the terms of the conditions of occupation and had thus become an unauthorised occupant liable to be evicted from the premises in terms of section 105B and passed an order of eviction against the appellant
This order was on appeal set aside by the appellate officer on appreciation of the evidence and the terms of the agreements the appellate officer held that the agreement dated 2731964 approved and recorded the assignment and transfer of the right title and interest of the original occupant to the appellant and recognised the appellant as the principal occupant and that the Corporation was at all material times aware of the appellant s relationship with the second respondent and the occupation of the premises by the second respondent under the appellant
The eviction of the appellant solely on the ground of sub letting was therefore unwarranted
The High Court in exercise of its jurisdiction under Article 227 of the Constitution held that the appellate officer was wrong in saying that the circumstances had not altered so as to warrant an order of eviction on the ground of sub lease and that the lease in favour of the appellant had been duly determined by the Corporation in terms of the contract and the appellant having thus become an unauthorised occupant was as such liable to be evicted under clause b of sub section 1 of section 105B
The High Court accordingly set aside the order made by the appellate officer under section 105B and restored the order of eviction made under section 105B by the Enquiry Officer
In the appeal to this Court it was submitted on behalf of the appellant that persons in occupation of premises under authority are not liable to be evicted otherwise than on any one of the statutorily specified grounds and that the application of clause b of sub section 1 of section 105B is confined to persons in unauthorised occupation and that the appellate officer having found that the Corporation when it entered into an agreement of occupation with the appellant on 1761967 fully aware of the terms and conditions under which the second respondent was in occupation of the premises under the appellant the High Court was not justified in upholding the eviction of the appellant on the very same ground
On behalf of the respondent No 1 Corporation it was submitted that in view of the finding that the sub lease granted or renewed by the appellant was contrary to clauses 6 and 2 of the agreement dated 1761967 the appellant has after the expiry of the period stipulated in 831 the notice dated 2571969 become an unauthorised occupant and is liable to be evicted in terms of clause b of sub section 1 of section 105B
On the question whether it is open to the Corporation to have recourse to clause b of sub section 1 of section 105B to order eviction of the appellant as an unauthorised occupant and whether clause b is attracted where eviction is sought to be made by determination of authority otherwise than in terms of the statute
Allowing the appeal the Court HELD 1
Section 105A to section 105H of Chapter VA were inserted in the Act in 1961 to provide for speedy eviction of persons in unauthorised occupation of Corporation premises
839C Section 105Ad defines unauthorised occupation 
This definition shows that occupation of Corporation premises without authority for such occupation is an unauthorised occupation
Such occupation includes continuance in occupation by a person after the authority under which he occupied the premises has expired or it has been duly determined
the definition thus includes not only a trespasser whose initial and continued occupation has never been under any valid authority but it also includes in equal measure a person whose occupation at its commencement was under authority but such authority has since expired or has been duly determined Which means validly determined
The expiry of authority to occupy occurs by reason of the terms or conditions of occupation
On the other hand the determination of authority to occupy to be due or valid must be founded on one of the grounds specified by the statute
Any order of eviction on the ground of either expiry or due determination has to be made in accordance with the procedure prescribed by the statute
839D H 3
Clause a of sub section 1 of section 105B contains various grounds upon which a person is liable to be evicted
Clause b says that unauthorised occupation itself is a ground for eviction
Sub section 2 speaks of show cause notice before an order of eviction by notice is made under sub section 1
Sub section 3 has conferred sufficient power on the Commissioner to enforce an order of eviction made by him under sub section 1
For the purpose of holding an enquiry under the Act the Commissioner is invested with all the powers of a Civil Court Section 105E An appeal lies from every order of the Commissioner 832 under section 105B or section 105C to the appellate officer namely the Principal Judge of the City Civil Court of Bombay section 105F whose orders are final and not liable to be called in question in any original suit application or execution proceeding Section 105G
841E G 4
The satisfaction of the Commissioner which is the condition precedent to the exercise of power of eviction by the summary procedure prescribed by the Act may be in respect of any of the circumstances falling under clauses a b or c of sub section 1 of section 105B
Clause a contemplates eviction of any person on any one of the grounds mentioned in sub clauses i to iv thereof
These grounds relate only to a person in authorised occupation of Corporation premises
They have no application to a trespasser
841H 842B 5
Likewise clause c presumably applies to authorised occupation of Corporation premises which the Commissioner is empowered to terminate by ordering eviction of the occupant otherwise than on any of the grounds specified under clause a provided the Commissioner is satisfied that the premises in question are required by the Corporation in the public interest
All that the Commissioner has to satisfy himself in a case falling under clause c is as regards the public interest requiring eviction
Construction of parks playgrounds hospitals colleges markets destitute homes and the like will indeed qualify for invoking the Commissioner s power under clause c
842C 6
Clause b is a powerful weapon for eviction of an unauthorised occupant
This clause is applicable equally to a trespasser as it is to a person whose occupation has ceased to be an authorised occupation by reason of expiry of authority in terms thereof or due determination of authority under clause a or clause c of sub section 1 of section 105B 842D 7
If a person is in occupation without authority as in the case of a trespasser or if the authority under which a person has been in occupation has expired in terms thereof and he continues to remain in occupation of the premises he will be liable to be evicted on the ground mentioned in clause b of sub section 1 of section 105B but in accordance with the procedure laid down in that section and on the satisfaction of the Commissioner expressed by an order as to the lack or expiry of authority
842E F 8
Sub letting as such without more is not a ground for eviction 833 under clause a ii
What attracts eviction in terms of that provision is sub letting which is contrary to the terms or conditions of occupation
843C In the instant case the appellate officer has found that the occupation of the premises by the second respondent under the appellant was well known to the Corporation the terms and conditions of that occupation were closely scrutinised by the Corporation before recognising the transfer of rights and interest from the previous principal occupant to the appellant and it was on that basis and with that knowledge that the Corporation authorised the occupation of the premises by the appellant in terms of the agreement dated 1761967
In such circumstances whatever right of occupation which the second respondent enjoyed under the appellant must be deemed to have been incorporated as a term of the authority granted by the Corporation in favour of the appellant
The appellate officer has categorically found that there was no evidence whatsoever to indicate that the circumstances in which the premises had been occupied by the second respondent had in any manner or at any time altered so as to affect the terms or conditions under which the appellant was recognised as the principal occupant
The Corporation is accordingly on the facts found estopped from having recourse to the ground falling under clause a ii of sub section 1 of section 105B 843D G 9
In proceedings under Article 227 of the Constitution the high Court was not justified in interfering with the findings of fact rendered against the Corporation by the appellate officer
843H 844A