Case: Sri Indra Das Vs. State of Assam

sale since a wider construction would have resulted in attributing to the Bihar Legislature an intention to legislate beyond its competence. 37. In Section 6(a) of the Hindu Minority and Guardianship Act, 1956 which provides that the natural guardian of a minors person or property will be `the father and after him, the mother, the words `after him were construed not to mean `only after the lifetime of the father but to mean `in the absence of, as the former construction would have made the section unconstitutional being violative of the constitutional provision against sex discrimination vide Githa Hariharan vs. Reserve Bank of India AIR 1999 SC 1149 . 38. In Govindlalji vs. State of Rajasthan AIR 1963 SC 1638 , where a question arose as to the Constitutional validity of the Rajasthan Nathdwara Temple Act (13 of 1959), the wordsaffairs of the temple occurring in Section 16 of the said Act were construed as restricted to secular affairs as on a wider construction the Section would have violated Articles 25 and 26 of the Constitution. 39. This Court in R.L. Arora vs. State of U.P. AIR 1964 SC 1230 applied the same principle in construing Section 40(1), clause (aa) of the Land Acquisition Act, 1894, as amended by Act 31 of 1962 so as to confine its application to such `building or work which will subserve the public purpose of the industry or work in which the company, for which acquisition is made, is engaged. A wider and a literal construction of the clause would have brought it in conflict with Article 31(2) of the Constitution and would have rendered it unconstitutional. 40. In Indian Oil Corporation vs. Municipal Corporation AIR 1993 SC 844 Section 123 of the Punjab Municipal Corporation Act, 1976 which empowered the Corporation to levy octroi on articles and animals `imported into the city was read down to mean articles and animals `imported into the municipal limits for purposes of consumption, use or sale only, as a wide construction would have made the provision unconstitutional being in excess of the power of the State Legislature conferred by Entry 52 of List II of Schedule VII of the Constitution. 41. A further illustration, where general words were read down to keep the legislation within permissible constitutional limits, is furnished in the construction of Section 5 of the Lotteries (Regulation) Act, 1998 which reads: `A State Government may, within the State prohibit the sale of tickets of a lottery organized conducted or promoted by every other State. To avoid the vice of discrimination and excessive delegation, the Section was construed to mean that a State can only ban lotteries of other States, when it decides as a policy to ban its own lotteries, or in other words, when it decides to make the State a lottery free zone vide BR Enterprises vs. State of U.P. AIR 1999 SC 1867 . 42. It may be mentioned that there were Constitutions in our country even under British Rule e.g. the Government of India Act, 1935, and the earlier Government of India Acts. These Constitutions, however, did not have fundamental right guaranteed to the people. In sharp contrast to these is the Constitution of 1950 which has fundamental rights in Part III. These fundamental rights are largely on the pattern of the Bill of Rights to the U.S. Constitution. 43. Had there been no Constitution having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act. But since there is a Constitution in our country providing for democracy and Fundamental Rights we cannot give these statutory provisions such a meaning as that would make them unconstitutional. 44. In State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 ( para 23) this Court observed : ...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that an elective despotism was not the Government we fought for. And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC 271 , and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54. [emphasis supplied] In M. Nagaraj & Ors. Vs. Union of India &Ors. (2006) 8 SCC 212 , (para 20) this Court observed : It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race. In I.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court observed : It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution.....Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as transcendental, inalienable, and primordial.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]26. It has been submitted by the learned counsel for the Government before the TADA Court that under many laws mere membership of an organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities (Prevention ) Act 1967, etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution31. Similarly, we are of the opinion that the provisions in various statutes i.e. 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional34. The rule was applied by the Supreme Court in Kedar Nath Singh vs. State of Bihar (we have already referred to this decision earlier) in its construction of Section 124A of the IPC. The Section which relates to the offence of sedition makes a person punishable who `by words, either spoken or written or by sign or visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law. The Section, as construed by the Privy Council in Bal Gangadhar Tilak vs. Queen Empress ILR 22 Bom 528 (PC); Annie Besant vs. A-G of Madras AIR 1919 PC 31; and Emperor vs. Sadasiv Narain AIR 1947 PC 84; did not make it essential for an activity to come within its mischief that the same should involve intention or tendency to create disorder, or disturbance of law and order or incitement to violence. The Federal Court in Niharendra Dutta vs. Emperor AIR 1942 FC 22 had, however, taken a different view. In the Supreme Court when the question came up as to the Constitutional validity of the Section, the Court differing from the Privy Council adopted the construction placed by the Federal Court and held that on a correct construction, the provisions of the Section are limited in their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence; and one of the reasons for adopting this construction was to avoid the result of unconstitutionality in view of Articles 19(1)(a) and 19(2) of the Constitution