TaxTMI 
TaxTMI 
2012 (3) TMI 200
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....ner had not only joined as Member of the CESTAT but also demitted office as such Member?" 3. We may notice the basic factual premise from which the above legal questions have arisen for consideration of this Court. Primarily, we would be referring to the facts of SLP (C) No.8482 of 2010 titled P.C. Jain v. Union of India & Ors. 4. The appellant joined the Indian Customs and Central Excise Service, Class - I (later called Group `A'), in the year 1956, where he served for a number of years, in different capacities. On 1st November, 1990, the appellant was selected as a Member (Technical) in the Customs, Excise and Gold (Control) Appellate -Tribunal (CEGAT). The appellant demitted his office as Member (Technical) of CEGAT on 7th March, 1993. As he was a law graduate, he was enrolled as an advocate with the Bar Council of India on 18th March, 1993. The CEGAT was replaced by the Central Excise and Service Tax Appellate Tribunal (for short, `the CESTAT/Tribunal'. Vide Finance Act, 2003, Section 129(6) was introduced to the Customs Act, 1962 (for short `Customs Act') in terms of which, the members of the Tribunal were debarred from appearing, acting or pleading before ....
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....6) of the Constitution. It also held that once the right to appear, act or plead is taken away in respect of the Tribunal, since the same forum hears and adjudicates upon the matters concerning three streams of law, the persons concerned are automatically debarred from acting, appearing or pleading before such forum, i.e., the Tribunal in respect of all matters. The High Court even referred to some of the judgments of this Court, as well as to Article 220 of the Constitution, which places a prohibition or limitation on the right of a permanent Judge of the High Court to plead or act before the Court of which he had been a permanent Judge and/or before the Courts, Tribunals, Authorities over which the said Court had exercised supervisory jurisdiction. 6. Before we dwell upon the merits of the contentions raised or the correctness of the reasons given by the High Court, it will be appropriate for us to reproduce the provisions of Section 129 of the Customs Act, which read as follows : "129 - Appellate Tribunal--(1) The Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Service Tax Appellate Tribunal consisting of as many....
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....ompletely in consonance with the basic norms of human rights, recognized and accepted all over the world. The fundamental rights are basic rights, but they are neither uncontrolled nor without restrictions. In fact, the framers of the Indian Constitution themselves spelt out the nature of restriction on such rights. Exceptions apart, normally the restriction or power to regulate the manner of exercise of a right would not frustrate the right. Take, for example, the most valuable right even from amongst the fundamental rights, i.e., the right to freedom of speech and expression. This right is conferred by Article 19(1)(a) but in turn, the Constitution itself requires its regulation in the interest of the `public order' under Article 19(2). The State could impose reasonable restrictions on the exercise of the rights conferred, in the interest of the sovereignty and integrity of India, the security of the State, free relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement of an offence. Such restrictions are within the scope of -constitutionally permissible restriction. Exercise of legislative power in this respect....
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....pplied over a period of time to examine the validity and/or reasonability of the restrictions imposed upon the rights. 11. No person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:- a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up. b) Each restriction must be reasonable. c) A restriction must be related to the purpose mentioned in Article 19(2). 12. The questions before us, thus, are whether the restriction imposed was reasonable and whether the purported purpose of the same squarely fell within the relevant clauses discussed above. The legislative determination of what restriction to impose on a freedom -is final and conclusive, as it is not open to judicial review. The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "r....
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....ament or the State Legislature. In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge in case of allegations of alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable. It is for the State to place appropriate material justifying the restriction and its reasonability on record. 15. The Advocates Act, 1961 (hereinafter referred to as `the Advocates Act') itself was introduced to implement the recommendations of the All India Bar Committee made in 1953. It aimed at establishment of an All India Bar Council, a common rule for the advocates and integration of the Bar into a single class of practioners known as `advocates'. It was also to create autonomous Bar Councils, one for the whole of India and one for each State. The Advocates Act provides for various aspects of the legal -profession. Under Section 29 of the Advocates....
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....ained a degree of law is entitled to practice anywhere in India, his right, as enshrined in the -Constitution and under the Advocates Act cannot be restricted or regulated and also that it is not necessary for him to enroll himself on any of the State rolls. This argument would be fallacious in face of the provisions of the Advocates Act as well as the restrictions contemplated in Article 19(6) of the Constitution. The Legislature is entitled to make a law relating to the professional or technical qualifications necessary for carrying on that profession. 17. We may also refer to a recent development of law in relation to right of the advocates or former judicial officers, to practice the profession of law. The Bar Council of India has been vested with the general power to make rules under Section 49 of the Advocates Act. In furtherance to this power vested with it, the Bar Council of India has framed the Bar Council of India Rules. Chapter III of these Rules deals with the conditions for the right to practice. Rule 7 of Chapter III of the said Rules is quite in pari materia with Section 129(6) of the Act and it reads as under : "An officer after his retirement o....
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....are unable to hold that the restriction imposed under Section 129(6) of the Act is unreasonable or ultra vires. Firstly, it is not an absolute restriction. It is a partial restriction to the extent that the persons who have held the office of the President, Vice--- President or other Members of the Tribunal cannot appear, act or plead before that Tribunal. In modern times, there are so many courts and tribunals in the country and in every State, so that this restriction would hardly jeopardize the interests of any hardworking and upright advocate. The right of such advocate to practice in the High Courts, District Courts and other Tribunals established by the State or the Central Government other than the CESTAT remains unaffected. Thus, the field of practice is wide open, in which there is no prohibition upon the practice by a person covered under the provisions of Section 129(6) of the Customs Act. Secondly, such a restriction is intended to serve a larger public interest and to uplift the professional values and standards of advocacy in the country. In fact, it would add further to public confidence in the administration of justice by the Tribunal, in discharge of its functions.....
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.... is reasonable from the point of view of the person or persons on whom the restrictions are imposed. The right conferred by sub-clause (g) is expressed in general language and if there had been no qualifying provision like clause (6) the right so conferred would have been an absolute one. To the persons who have this right any restriction will be irksome and may well be regarded by them as unreasonable. But the question cannot be decided on that basis. What the court has to do is to consider whether the -- restrictions imposed are reasonable in the interest of general public. In the State of Madras v. V.G. Row this Court laid down the test of reasonableness in the following terms: "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditio....
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....t of general public' is of wide import comprising public order, public security and public morals, it cannot be said that the standing orders closing the slaughterhouses - on seven days is not in the interest of general public. 21. In view of the aforesaid discussion we are not prepared to hold that the closure of the slaughter house on seven days specified in the two standing orders in any way put an unreasonable restriction on the fundamental right guaranteed to the petitioner- respondent under Article 19(1)(g) of the Constitution. 22. This leads us to the second contention raised on behalf of the respondent, which is based on Article 14 of the Constitution. The High Court had repelled this contention for a valid reason with which we fully agree. 23. It is now well established that while Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others le....
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.... based on intelligible differentia and distinguishes them from those who kill goats and sheep and this differentiation has a close connection with the object sought to be achieved by the impugned Act, namely the preservation, protection and the improvement of our livestock. The attainment of these objectives may well necessitate that the slaughterers of cattle should be dealt with differently than the slaughterers of say, goats and sheep. The standing orders, therefore, in our view, adopt a classification based on sound and intelligible basis and can quite clearly stand the test laid down above." 23. Another Constitution Bench of this Court, while dealing with the provisions of the Legal Practitioners Act, 1879, a pre- constitution law, considered the correctness or effect of restrictions on the rights of a Mukhtiar to act or plead before the Civil Court, under Rule 2 of the Rules, framed under the provisions of that Act by the High Court and held that Sections 9 and 11 of that Act would have to be read together. It would be wrong to treat the mere right to practice conferred by Section 9 of the Legal Practioners Act as disassociated from the functions, powers and duties ....
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....pellant, is completely different on facts and in law. In the case in hand, the consistent position is that there is no challenge to the legislative competence in amending Section 129(6) of the Customs Act. The challenge is limited to the ground of its being ultra vires Articles -19(1)(g), 19(6) and 14 of the Constitution. Therefore, the counsel cannot draw any advantage from that case. 25. In the case of Paradip Port Trust, Paradip v. Their Workmen [AIR 1977 SC 36], this Court dealt with the right of the legal practitioners to represent employers before the Industrial Tribunal that too only with the consent of the opposite party and leave of the Tribunal. The restriction was limited in its scope and impact and this Court held that it was not violative of the right of the legal practitioners as they will have to conform to the conditions laid down in Section 36(4) of the Industrial Disputes Act, 1947. 26. Refuting contentions that this provision would be repugnant to Section 30 of the Advocates Act, this Court held that the Industrial Disputes Act was a special piece of legislation with the aim of labour welfare and representation before the adjudicative authorit....
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....n are in no way undermined. Its job is to uphold the standards of professional conduct and etiquette. Thus every State Bar Council and the Bar Council of India has a public duty to perform, namely, to ensure that the monopoly of practice granted under the Act is not misused or abused by a person who is enrolled as an advocate. The Bar Councils have been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession are not jeopardized. It is generally believed that members of the legal profession have certain social obligations, e.g., to render "pro bono publico" service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour -and, therefore, he must strictly and scrupulously abide by the Code of Conduct behaving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions o....
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....very case, the Court also observed that these well- established connotations and contours of the requirements of the legal profession itself supply the necessary guidelines to the concerned Bar Councils or Legislatures to frame Rules for regulating the entry of the persons to the profession. 33. This judgment is relatable to the legal profession and we have already noticed the judgments of this Court relating to other professions. Imposition of restrictions is a concept inbuilt into the enjoyment of fundamental rights, as no right can exist without a corresponding reasonable restriction placed on it. When the restrictions are placed upon the carrying on of a profession or to ensure that the intent, object or purpose achieved thereby would be enhancing the purity of public life, such object would certainly be throttled if there arose a situation of conflict between private interest and public duty. The principle of private interest giving way to public interest is a settled cannon, not only of administrative jurisprudence, but of statutory interpretation as well. Having regard to the prevalent values and conditions of the profession, most of the legal practitioners would n....
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....ssibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action, with reference to -the facts and circumstances of a given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior category, the decision would attract judicial castecism but if it falls in the latter, it would hardly effect the decision, much less adversely. 36. Harry Woolf, Jeffey Jowell and Andrew Le Sueur, in their recent book De Smith's Judicial Review (Sixth Edition) have referred to the concept of `automatic disqualification', that is, where the element of bias is present and would lead to disqualification on its own. This rule was invoked to invalidate the composition of a disciplinary tribunal of the Council of the Inns of Court, since one of the members of the tribunal had been a member of the Professional Conduct....
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....are very difficult to be defined and demarcated with precision. Some element of uncertainty would be prevalent. There can be removal of doubts to the facts of a given case that would help in determining matters with somewhat greater uncertainty. The contention of the petitioners that there has to be empirical data to suggest their practice before the Tribunal resulted in instances of misdemeanor which would have propelled the respondents to insert such a provision in the enactment, has rightly been rejected by the High Court. It may not even be proper to introduce such amendments with reference to any data. Suffice it -- to note that these amendments are primarily based upon public perception and normal behaviour of an ordinary human being. It is difficult to define cases where element of bias would affect the decision and where it would not, by a precise line of distinction. Even in a group, a person possessing a special knowledge may be in a position to influence the group and his bias may operate in a subtle manner. 39. The general principles of bias are equally applicable to our administrative and civil jurisprudence. Members of the Tribunals, called upon to try issue....
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....xisting a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, would not arise." 41. The word `bias' in popular English parlance stands included within the attributes and broader purview of the word `malice', which in general connotation, means and implies `spite' or `ill will'. It is also now a well settled proposition that existence of the element of `bias' is to be inferred as per the standard and comprehension of a reasonable man. The bias may also be malicious act having some element of intention without just cause or excuse. In case of malice or ill will, it may be an actual act conveying negativity but the element of bias could be apparent or reasonably seen without -any negative result and could form part of a general public perception. 42. Now, we shall proceed to examine the merits of the contention raised that the provisions of Section 129(6) of the Customs Act cannot be given effect to retrospectively. The argument advanced is that the appellants were enrolled as advocates w....
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....resent case. 45. We may refer to the case of R. v. Inhabitants of St. Mary, Whitechapel [(1881) 12 QB 149] whereby under Section 2 of the Poor Removal Act, 1846, `No woman residing in any parish with her husband at the time of his death shall be removed... from such parish, for twelve calendar months after his death, if she so long continue a widow.' In this case, a widow was sought to be removed within such period of 12 months, on the grounds that her husband had died before the coming into force of that Act. The question was whether that provision applied retrospectively. Lord Denman, C.J, held that `the statute is, in its direct operation, prospective, as it relates to future removals only and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from its time antecedent to its passing'. Thus, the provision was held not to be retrospective. 46. Examined the case of the appellants from this angle, it would mean that the law is not at all retrospective even though the -- retirement or date of ceasing to be a member of the Tribunal may have been on a date anterior to the date of passing of the law. ....
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....principles of statutory interpretation have expanded. With the development of law, it is desirable that the Courts should -apply the latest tools of interpretation to arrive at a more meaningful and definite conclusion. The doctrine of fairness has also been applied by this Court in the case of Vijay v. State of Maharashtra & Ors.[(2006) 6 SCC 289]. A restriction was introduced providing that a person shall not be a member of a Panchayat or continue as such, if he has been elected as Councilor of Zila Parishad or as a member of the Panchayat Samiti. This restriction was held to be retrospective and applicable to the existing members of the Panchayat also. Applying the rule of literal construction, this Court held that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed only prospective. This was further strengthened by the application of the rule of fairness. 50. In the present case, the restriction would be applied uniformly to all the practicing advocates as well as to the advocates who would join the profession in future and would achieve the object of the Customs Act without leading....