1960 (12) TMI 90 - SC - Indian Laws

Calcutta Police Act Section 39 Constitutional: Upheld by Majority, Dissent by Subba Rao

The majority opinion upheld the constitutionality of Section 39 of the Calcutta Police Act, 1866, dismissing the petition with costs. Subba Rao, J., ... Reasonable restriction on the right to carry on trade - guided discretion in licensing - absence of hearing and reasons in administrative licensing - mala fidesReasonable restriction on the right to carry on trade - guided discretion in licensing - Constitutional validity of Section 39 of the Calcutta Police Act as a restriction under Art. 19(1)(g) read with Art. 19(6). - HELD THAT: - The majority construed s. 39 as a licensing provision in a Police Act whose specified objects - securing the good behaviour of keepers and preventing drunkenness and disorder among patrons - together with the necessary implication that the applicant must be in actual and effective control of the premises, furnish criteria to guide the Commissioner's discretion. Read as a whole, the section requires the Commissioner to satisfy himself that (i) the applicant is the keeper in actual and effective control and possession of the eating-house premises, (ii) the keeper is a person of good behaviour, and (iii) the keeper is able to prevent drunkenness and disorder; satisfaction on these matters will ordinarily call for grant of a licence, whereas failure will permit refusal. On that footing the majority held that the power is not an absolute unguided discretion and therefore does not amount to an unreasonable restriction on the fundamental right to carry on trade.Section 39 is constitutional; the discretion it vests in the Commissioner is guided by the section's objects and necessary implications.Absence of hearing and reasons in administrative licensing - guided discretion in licensing - Whether the lack of statutory provision for an oral or written hearing and for communicating reasons for refusal renders s. 39 unconstitutional. - HELD THAT: - The majority accepted that s. 39 contains no express provision for hearing or for communicating reasons for refusal. However, having regard to the setting of the provision in a Police Act directed to the maintenance of law and order, and to the administrative character of the decision, the majority held that a requirement of hearing or provision for reasons is not an indispensable element of reasonableness in every licensing statute. The applicant is aware of the statutory criteria and may seek judicial review under Art. 226 to challenge extraneous or irrelevant reasons relied upon by the Commissioner; administrative discretion may be exercised reasonably without following judicial procedure. Thus absence of statutory hearing or mandatory communication of reasons does not, in the majority's view, render the section an unreasonable restriction on Art. 19(1)(g).The absence of a statutory right to hearing or to have reasons communicated does not invalidate s. 39 in the circumstances; such procedural lacunae are amenable to judicial review under Art. 226 rather than automatically voiding the statute.Mala fides - Whether the Commissioner's refusal of the petitioner's licence was mala fide. - HELD THAT: - The petitioner alleged malice arising from the Commissioner's rejection and earlier prosecutions. The majority found no evidence of personal animus or favouritism and observed that the petitioner merely disputed the correctness of the reasons given and suggested annoyance at prior litigation; such allegations did not establish malice sufficient to vitiate the administrative order.The Commissioner's order of May 30, 1959, is not mala fide.Final Conclusion: By a majority the petition challenging s. 39 of the Calcutta Police Act was dismissed with costs: the majority upheld the constitutionality of s. 39 and rejected the claim of mala fides; the petitioner's challenge on procedural grounds was held not to invalidate the section, and no mandamus was issued. Issues Involved:1. Constitutionality of Section 39 of the Calcutta Police Act, 1866.2. Whether Section 39 imposes unreasonable restrictions on the fundamental right to carry on trade under Article 19(1)(g) of the Constitution.3. Whether the discretion conferred on the Commissioner of Police under Section 39 is arbitrary and unguided.4. Whether the absence of a provision for a hearing and for giving reasons for refusal makes Section 39 unconstitutional.5. Allegations of mala fides in the rejection of the petitioner's licence application.Issue-wise Detailed Analysis:1. Constitutionality of Section 39 of the Calcutta Police Act, 1866:The petitioner challenged the constitutionality of Section 39 of the Calcutta Police Act, 1866, arguing that it conferred naked and uncanalised powers on the Commissioner of Police to grant or refuse a licence without any guiding criteria, thus amounting to an unreasonable restriction on the fundamental right to carry on trade under Article 19(1)(g) of the Constitution.2. Whether Section 39 imposes unreasonable restrictions on the fundamental right to carry on trade under Article 19(1)(g) of the Constitution:The Court examined whether Section 39 of the Act constitutes a reasonable restriction within the meaning of Article 19(6) on the fundamental right to practice any profession or to carry on any occupation, trade, or business under Article 19(1)(g). The Court noted that the Act was passed in 1866, long before the Constitution came into force, and thus, the language might not reflect the meticulousness expected in post-1950 statutes. The Court opined that the section must be read as a whole to determine if there is any guidance for the Commissioner in granting or refusing licences.3. Whether the discretion conferred on the Commissioner of Police under Section 39 is arbitrary and unguided:The Court concluded that Section 39 does not confer absolute and unguided discretion on the Commissioner. It provides that the Commissioner must satisfy himself on three points: (i) the applicant must be the keeper of an eating house, (ii) the applicant must be of good behavior, and (iii) the applicant must be able to prevent drunkenness and disorder among patrons. The Court held that these criteria guide the Commissioner's discretion, thereby making the restriction reasonable.4. Whether the absence of a provision for a hearing and for giving reasons for refusal makes Section 39 unconstitutional:The petitioner argued that the absence of a provision for a hearing and for giving reasons for refusal rendered Section 39 unconstitutional. The Court, however, held that procedural aspects must be examined in the context of the statute. It noted that the discretion is vested in a high police officer, and while the Commissioner is expected to act reasonably, there is no duty cast on him to act judicially. The Court stated that the absence of a provision for a hearing or for communicating reasons does not make Section 39 unconstitutional, as the petitioner has the remedy to apply to the High Court under Article 226 if the Commissioner acts unreasonably.5. Allegations of mala fides in the rejection of the petitioner's licence application:The petitioner alleged that the order rejecting his licence application was mala fide. The Court found no grounds to support this allegation, noting that the petitioner did not claim any personal animus or favoritism by the Commissioner. The Court dismissed the petition on this ground as well.Separate Judgment by Subba Rao, J.:Subba Rao, J., dissented, arguing that Section 39 imposed unreasonable restrictions on the fundamental right to carry on trade. He emphasized that the discretion conferred on the Commissioner was uncanalised and arbitrary, lacking procedural safeguards such as a hearing or an appeal mechanism. He concluded that Section 39 infringed the petitioner's fundamental right under Article 19(1)(g) and recommended issuing a writ of mandamus against the Commissioner.Conclusion:The majority opinion upheld the constitutionality of Section 39 of the Calcutta Police Act, 1866, dismissing the petition with costs. Subba Rao, J., dissented, finding the section unconstitutional and recommending a writ of mandamus.