Banamali Das vs Pakhu Bhandari

Harries, C.J.—This matter has been referred to this Court by the learned Sessions Judge of Birbhum under the provisions of a circular letter addressed to all Courts by this Court calling their attention to the provision of Art. 228 of the Constitution of India. This Court being satisfied that the case transferred involved a constitutional point, notice was given to the parties and the constitutional point involved has been the subject matter of argument before us. The constitutional point involved in this case is whether or not the West Bengal Hindu Social Disabilities Removal Act of 1948 is ultra -vires the Constitution of India.

On January 3, 1951, one Banamali Das lodged a complaint before the Subdivisional Officer of Suri against the accused and others alleging that the accused had refused to cut the complainant''s hair and also to render services to other persons who belong to the same caste as the complainant, his caste being that of a cobbler or leather worker.

After recording the evidence of the complainant the learned Subdivisional Officer issued process against the accused under sec. 8 read with sec. 3 (c) of the West Bengal Hindu Social Disabilities Removal Act, 1948. The case was eventually transferred to a Magistrate for disposal and a date was fixed for taking evidence in the case. An application was made to the learned Sessions Judge to refer the case to the High Court as required by the Circular Letter as the case involved a substantial question of constitutional importance and should be decided by the High Court as required by Art. 228 of the Constitution of India.

Before the Sessions Judge it was contended that the Act was ultra vires in that it unreasonably restricted the petitioner in the exercise of his profession or calling of a barber. Further it was said that the Act contravened Art. 14 of the Constitution as it was discriminatory in its tendency.

Mr. Ajit Kumar Dutta who has appeared on behalf of the petitioner, the accused-barber, has challenged the Act in question on both these grounds and in order to appreciate the argument it will be necessary shortly to consider the provisions of the impugned Act. The Act is entitled: "An Act to provide for the removal of certain social disabilities suffered by some sections of Hindus". Then follows the preamble which is in these terms:

Whereas it is expedient to foster a spirit of unity and harmony amongst all classes of people and, to that end, to provide for the removal of certain social disabilities suffered by some sections of Hindus.

It is quite clear from the title of the Act and the preamble that the object of the legislation was to remove certain social disabilities suffered by some sections of Hindus and thereby foster a spirit of unity and harmony amongst all classes of people residing within the confines of this State.

Section 2(a) of the Act defines "Hindu" as including a Buddhist, Sikh. Jain, Santal, Adibasi, a follower of Arya or Brahma Samaj or a convert to Hinduism or any other person habitually professing himself to be a Hindu. The other definitions are not very material in this case.

Section 3 provides: "Notwithstanding anything contained in any instrument or any law. custom or usage to the contrary, no Hindu shall merely on the ground that he belongs to a particular caste or class-

(a) be ineligible for office under any authority constituted under any law, or

(b) be prevented from having access to various places and enjoying certain benefits.

He cannot, for example, be prevented from having access to or offering worship at a temple, having access to a river, tank, water-tap or other watering places, or having access to or using any public conveyance, or using any building used for charitable or public purposes, or having access to a place of public amusement, or a shop, or any place set apart or maintained for the use of Hindus generally, or be prevented from enjoying any benefit under a charitable trust created for the benefit of Hindus generally. Then follows paragraph (c) which is in these terms:

....no Hindu shall merely on the ground that he belongs to a particular caste or class.... be denied any service whatsoever whether in connection with civic, social or religious practices or rites. by a Hindu who habitually renders such service in the course of his profession.

It is this paragraph which is the main subject of attack and to which I shall return later.

Section 4 provides that there shall be no discrimination on the grounds of caste or class and section 5 enjoins the courts not to recognize any custom or usage, imposing disability on a Hindu on the ground of caste or class.

Section 6 provides that local authorities are not to recognise any custom or usage imposing disability on the ground of caste or creed and sec. 7 enacts that "no Hindu shall be denied admission to any school, college or other educational institution meant for the public merely on the ground that he belongs to a particular caste '' or class".

Section 8 provides penalties and it is declared by sub-sec. (1) (a) of sec. 8 that whoever denies to any Hindu any service referred to in cl. (c) of sec. 3 commits an offence and shall be punished with imprisonment for a term which may extend to three months, or with _a fine, or with both.

Mr. Ajit Kumar Dutta first contended that we should have to hold this Act ultra, vires because the definition of ''''Hindu'''' was far too wide and that the Act would cover cases which could not possibly have been in the minds of the legislature. The term "Hindu" is defined in a very wide manner. But I cannot see that the Act is ultra vires by reason of such definition. Jains and Sikhs are frequently classed with Hindus though they are not Hindus and so are Santals and Adibasis. Buddhists are not Hindus or at least do not profess the Hindu religion. But they are often Indians in. the true sense of the word. There is nothing, I think, objectionable in including these classes as Hindus and making the Act applicable to them. The scheme of the Act is that none of these classes of persons covered by the term "Hindu" can act to the detriment of certain castes or classes of Hindus. In short, the general scheme of the Act is to protect the lower castes against being discriminated against by the higher castes and to make all castes or classes of Hindus equal in the social, civic and religious fields.

It was then contended that cl. (c) of Sec. 3 of the Act was ultra vires and offended in particular against Art. 19(1) (g) of the Constitution. That Article provides that all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business. That right however is subject to the limitations set out in cl. (6) of that Article which provides:

Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said.sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of an- existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.

Mr. Dutt''s argument is that cl. (r) of sec. 3 interferes with his right to practise his profession as a barber or to carry on his occupation of a barber.

There is nothing in the Act which cuts down his right to carry on the profession of a barber. Had the Act provided that no Hindu should perform the services of a barber in connection with any low-cast-Hindu, then it- might well be said that his right to practise his profession had been seriously curtailed and interfered with. The Act does not prevent the petitioner from carrying on the profession of a barber. All it does is to prohibit him discriminating between one Hindu and another in carrying out his duties as a barber. The Act compels him to serve all alike and really enlarges the scope of his services rather than restrict the same Strictly therefore it cannot be said that this Act imposes any restrictions On the right to carry on the profession or occupation of a barber. What it does do is to impose restrictions on the petitioner''s view of what he as a barber should be called upon to do. I greatly doubt whether this Act can be said to impose a restriction on the practice of his profession. It enjoins that he should not discriminate and should serve all alike and not that he should not serve persons whom he wishes to serve. It compels him to serve persons whom he does not wish to serve and it is only to that extent that it could be Said to impose restrictions on his conception of what a barber should be called upon to do.

Even assuming that cl. (c) of sec. 3 did impose a restriction on the petitioner'' right to practise the profession or occupation of a barber, that would not end the miler, because the law can provide for restrictions if they are reasonable in the interests of the general public. It seems to me that the words "''interests of the general public" can only mean the public interest. This Act, as the preamble states, was passed in order to foster a spirit of unity and harmony among all lasses of people. A spirit of unity and harmony is utterly impossible if these social disabilities are allowed to continue. That was the view of the legislature and this Act was passed to remove those social disabilities and thereby foster and encourage the much sought-for spirit of unity and Hanson. Can it be said that the restrictions imposed by clause (c) of this.Act are more than are reasonably necessary in the public interest ? It appears to me that the public interest nowadays demands that everything should be done to foster unity and harmony and to knit all people together into one harmonious whole. The citizens of India should not be subdivided, but should form a united Lady and that is an end which is rightly Fought for by Our law-making bodies. The makers of the Constitution have recognised it and have abolished untouchability and have also provided that there should be no discrimination only on the ground of caste or religion. In other words, the Constituent Assembly recognised that unity and harmony could only be obtained by abolishing these age-old social distinctions and it appears to me that imposing restrictions with a view to fostering this spirit of unity and harmony would be imposing restrictions which are no more than necessary in the public interest. That being so, it appears to me that this t and. in particular, clause (c) of sec. 3 cannot possibly be said to he ultra vires, because it offends against Art. 19(1) (g) of the Constitution.

It was then suggested that this Act offends against Art. 14 of the Constitution which provides that the State shall not deny to any person equality before the law Or the equal protection of the laws within the territory of India. I fail to see how this Act or any provision in it offends against this Article. Art. 14 is directed against discrimination and what the impugned Act wishes to abolish is discrimination by Hindus. The Act does not discriminate, but penalises and abolishes tendencies in Hindu society to discriminate. Clause (c) of sec. 3 of the Act directs that persons rendering services to other Hindus are not entitled to discriminate and refuse to perform such services on the ground of the caste or class of particular Hindus. This Act does not deny any person equality before the law. It tends to make all persons equal in society and ''before the law and I do not think it can possibly be argued that this Act de-nice persons equal protection of the law. In my view it cannot possibly be said that the Act is ultra vires because it offends against Art. 14 of the Constitution.

It was suggested faintly that the Act might offend against Art. 15 (1) of the Constitution which provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex place of birth or any of them. This Act does not discriminate against any citizen only on the ground of caste, or religion, or race. It'' makes it impossible for some Hindus to discriminate against other Hindus. That does not offend against Art, 15 of the. Constitution.

Lastly it was suggested that in so far as the Act applies to particular castes or classes of Hindus it went too far. "Class", it'' was said, was a much wider term than "caste". But I do not think it is necessary to discuss the effect or the use of the word "class" in this section. If the Act was ultra vires in So far as it applied to "Class" the words "or class" where they appear are clearly severable in the Act and the Act would still be intra vires in so far as it applied to "Caste". I find it difficult to appreciate the argument as to how it can be ultra vires because of the word "class". In any event, in the present case the allegation was that the petitioner had refused to perform the services of a barber at the request of the complainant because of the latter''s low caste and it seems to me that the Act under which the petitioner is prosecuted cannot possibly be regarded as ultra vires the Constitution.

Mr. Dutt contended that denial of the services of a barber would not come within clause (c) of sec. 3 of the Act, because ''what a Hindu cannot deny another is any service in connection with civic, social or religious practices and his argument was that the'' services of a barber is not in connection with either civic, social or religious practices. This is not a matter which we can consider and it will be a matter for the trial Magistrate to decide whether the service performed by a barber comes within clause (c) of sec. 3. The words ''civic, social or religious practices" are extremely wide and it may well be contended that they embrace practically all service which one Hindu could render to another and certainly services rendered for payment. That however is not a matter which this Court at this stage is called upon to consider.

For the reasons given I am satisfied that the impugned Act--The west Bengal Hindu Social Disabilities Removal Act, 1948--is not ultra vires the Constitution and therefore the prosecution cannot be disposed of on that ground. I may add that the view we take of this matter is that already taken by Roxburgh, J., in an un-reported case. The records are therefore returned to the trial Magistrate through the learned Sessions Judge of Birbhum and the trial Court will proceed to dispose of the case on the merits. I must accept the decision of this Court upon the constitutional point.

Banerjee, J.

I agree.