1. This is an application filed under Article. 226 of the Constitution of India for the issuance of a Writ of mandamus to the Government of Andhra Pradesh, the 1st respondent (i) to act according to law and to take immediate and necessary steps within limits of Act 1 of 1973 providing guidelines in classifying the lands in Bhadrachalm and Nugur taluks for the purpose of Act 1 of 1973; and (ii) the land Reforms Tribunal, Bhadrachalam, Khammam District, the Deputy Tahsildar, Nugur Taluk, Khammam District and the Tahsildar, Bhadrachalam, Khammam District Respondents 2 to 4, forbear for proceeding to fix taram and to classify the lands for this purpose of Act 1 of 1973 in Bhadrachalam division by classifying the lands arbitrarily basing on the taram fixed in upland area of East Godavari Dist. and consequently to declare the acts of the respondents in respect of fixation of taram and classification of lands in Bhadrachalam and Nugur Taluks in Khammam Dist as illegal, void and ultra vires.
2. Petitioners 1 to 14 are the landholders owning lands within the limit of Nugur taluk of Bhadrachalam Division and the petitioner No. 15 is having landed property both in Bhadrachalam taluk and in Nugur Taluk of Bhadrachalam Division. All of them have filed their declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, (Referred to hereinafter merely as 'the Act') within the time prescribed. They have been served with notices subsequent to their having filed the declarations by enquiring authorities, the 3rd and 4th respondents and in case of some petitioners, enquiries are going on for the purpose of verification of the particulars furnished in the declaration by the petitioners. In case of some others the enquiries are over and the proceedings are pending before the Tribunal passed orders, the respondents considered the entire dry land situated in Bhadrachalam Division as belonging to 'G' class by way of accepting the tarams recommended to be fixed by the concerned authority which was characterised by the petitioners as arbitrary.
3. The further complaint of the petitioners is that the Tahsildar even before issuing notices as required under Rule 19 of Explanation II to Sch. I of the Act read with Explanation II to Sch. I of the Act having arrived at conclusions to treat the dry lands of the respective land holders as belonging to Taram 3 classifying the land as belonging to G. Class. The respondents, basis arbitrarily classified the lands as belonging to G. class and thereafter, recommendation of respondents 3 and 4 in each case without having regard to the Rules under the provisions of the Act. The 2nd respondent seemed to have been stating that the Tarams are fixed by the Government Memo No. 1532 (G)/75 dated 16-4-1975 which is in the nature of instructions and, according to the petitioners, that had no application to the facts of the case. The requirement of the prior issuance of notice under Rule 19 also was complained against by the petitioners as not complied with. Even otherwise, they contended, no tarams were fixed in the area and within the jurisdiction of the Tribunal and, as such, Rule 19 has no application. Therefore, the jurisdiction of the authorities is afflicted with that infirmity. The authorities are thus acting not only in excess of jurisdiction whatsoever.
4. The further contention of the petitioners is that Bhadrachalam Division consists of two taluks viz. Bhadrachalam and Nugur Taluks, in both of which no taram is fixed for any piece of land and as such, it cannot be said that there is any land in the vicinity of the lands in question for which the taram is specified under the revenue and settlement records. The authorities are now simply following tarams that are fixed for the lands situated in the upland taluks of East Godavari District which are far away from this division. There was no similarity between the lands situated in the upland taluks of the East Godavari and the lands situated in this division.
5. The petitioners questioned the validity and legality and propriety of the procedure adopted by respondents 3 and 4 in specifying the taram of lands held by the petitioners herein arbitrarily and the action of the second respondent in accepting the tarams proposed by respondents 3 and 4 as a matter of course.
6. A case is sought to be made out for the non-applicability of the taram obtaining in East Godavari District to the lands of the petitioners on historical, geographical, topographical, political and climatic conditions.
7. The petitioners and their representatives made representations to the Government sufficiently in advance to rectify the defects in the procedure, bringing it to the notice of the Government that they have a duty to make a provision as appear to them to be necessary or expedient in removing the difficulty arising in giving effect to the provisions of the Act but the Government did not choose to accede to their request under Section 29 of the Act.
8. In the representation made to the Government filed along with the writ petition it is stated that it is just and equitable that the lands belonging to the petitioners should be treated on a par with those situated in the adjourning taluks of Burgampahad of the same district which is separated from the lands of the petitioners only by the river Godavari. They brought to the notice of the authorities the anomalous situation that is likely to arise out of the procedure adopted by the authorities concerned.
9. For the purpose of classification they represented that the system available in the neighbouring taluk viz. Burgampahad taluk can be straightway applied by providing special guidelines to the authorities concerned.
10. A final request was made in the representation dated 21-10-1975 by the petitioners that special rules may be made to the division in question to treat the people in par with the people of Burgampahad taluk and to direct the authorities not to treat the uplands in East and West Godavari as lands in the vicinity of Bhadrachalam division for the purpose of classification of lands under the Act.
11. In yet another representation dated 26-12-1975 it is stated thus:
'............................................................... what we pray is not to be discriminated against leaving us at the mercy of the authorities who had to decide arbitrarily for want of specific guide lines in the provisions of the Act and the Rules made thereunder. Therefore, it is prayed to provide guidelines by way of executive instructions and by making appropriate rules for this purpose.................................................................'
In paragraph 8 of the writ petition it is stated :
'The agency area in East Godavari does not find place in any settlement tract in Col. 2 of the table in the first schedule to the Act. Thus both in the case of wet lands and in the case of dry lands so far the Nugur and Bhadrachalam Taluks are concerned there is no survey and settlement and thus there is no survey and settlement to act within which the guidance is provided by the legislation to implement the mandate contained in Section 5 of the Act.'
In paragraph 10 it is stated thus:
'.....................................................what the petitioners question in this writ petition is only the power of the authorities to classify the lands in the Division by fixing the taram for the purpose of the Act'.
12. In paragraph 12 it is stated that the land in Mulugu and Burgampahad taluks on the other bank of the River also situated along the river opposite the Bhadrachalam division and they are very similar to the lands in Bhadrachalam Division. The landholders in Burgampahad taluk of Khammam District and Mulugu in Warangal District are getting an extent of 45 acres towards their individual holdings. The petitioners are also equally entitled for a similar extent of the lands in this division basing on the fertility of soil, situation and classification of the lands etc. But by following the tarams specified in the upland of the East Godavari District the petitioners are getting only about 35 acres of dry land as maximum extent in this division.
13. Finally it is stated that this is a case of total absence of power and jurisdiction on the part of the respondents 2 to 4 to classify the lands of the petitioners as belonging to Taram 3 falling in class G by following the tarams of the lands in the upland of East and West Godavari Districts , and that Rule 19 of the Rules is inapplicable to the facts of the case. In the absence of proper classification of the lands in Bhadrachalam Division, any attempt to implement the provisions of the Act will be futile and without power.
14. On behalf of the respondents, a counter affidavit was filed wherein it is contended that the classification made by the Tahsildars under the Act and the rules made thereunder is not arbitrary. A case is sought to be made out having regard to the political and geographical conditions that the Taram system prevailing in east and west Godavari districts is applicable to the petitioners' lands.
15. The violation of principles of natural justice and the violation of Rule 19 by the respondents is denied.
16. A case is also sought to be made out in paragraph 7 that as the existing laws of East Godavari District are continued to be in force in Bhadrachalam taluk for the purpose of computation of holding under Act 1 of 1973, the lands in this division should be held as part of the uplands of East Godavari district. The question of fixing Bhaganas treating the lands as in Telengana area under the Ceiling Act, according to the respondents, does not arise. It is stated in paragraph 9 that the Nugur and Bhadrachalam taluks do not form a separate tract by themselves and from a distant past they have been in the upland tract of East Godavari and the same continues.
17. This writ petition is stated to be premature as the petitioners approached this Court without exhausting the other remedies available under the statute. It is stated in paragraph 17 as against that contention of petitioners that the tarams of Mulugu and Burgampahad taluks shall have to be applied to Bhadrachalam division 'the very fact that the landholders in Burgampahad taluk of Khammam district and Mulugu in Warangal District are allowed an extent of 45 acres towards their individual holding clearly shows that the fertility of the soil, the productivity and sorts, the grain values are all entirely different and as such the Bhaganas cannot be made applicable to the areas in East Godavari which are governed by the tarams and whose soil situation and classification of the lands entirely differs. It is therefore appropriate that the tarams of East Godavari could itself be made applicable to these areas which were originally in the East Godavari itself and in the upland tract of East Godavari.'
18. There are other contentions raised on an analogous basis justifying the stand taken by the respondent and applying taram system to the lands in question.
19. Sri P. Shiv Shanker, learned counsel appearing for the petitioner argued both negatively as well as positively, negatively in the sense that the Taram obtaining in Godavari District should not have been applied to the lands of the petitioners and positively that the Bhaganna system obtaining in Burgampahad and Mulug areas in Telengana should be applied. The learned counsel has presented the case in an able and neat way bringing to the notice of Court all perspectives, historical, political, geographical and climatic in support of his contentions.
20. Sri. N. R. K. Chowdary, learned counsel for the petitioners in the other Writ petitions also argued the matter for the petitioners.
21. Sri Rajalingam, learned Government Pleader appearing for the respondents with his indefatigable industry sought to make out a case for destroying the basis of the contentions of the petitioners as contained in the writ petition and as argued by the learned counsel appearing for the petitioners.
22. The controversy in this case is centered around the interpretation of Section 5 of the Act and Rule 19 of the Rules made thereunder which, in so far as they are material, read thus:
'5 (1) Standard Holding for different classes of lands and compensation - For the purpose of this Act, land shall be classified as set out in the First Schedule. The extent of land which shall constitute a standard holding for the class of lands specified in column (1) of the Table below shall be specified against it in Col. (2) thereof'.
In the table annexed to the section, Class of land, extent of standard holding both with respect to wet, double crop wet land and wet land other than double wet land was given.
23. The first schedule appended to the Act provides for classification of lands, part I of which deals with wet lands referred to as classes A, B, C, D, E and F both in Andhra Area and Telengana area and part 2 of the said schedule deals with dry lands bearing settlement tarams or bhagannas in each of the settlement tracts or groups, as the case may be, shall be classified into respective classes G, H, I, J, and K as shown in the table. This also deals both with Andhra Area as well as Telengana Area.
Explanation I to the said schedule provides that taram and bhaganna shall be as registered in the revenue and settlement records of the Government as on the notified date.
Explanation II reads thus:
'If in respect of any land for which no taram or bhaganna is recorded in the revenue and settlement records of the Government or if any land bears a taram or bhaganna not shown in the Tables under clause 1 or 2 of this schedule , then such land shall be deemed to bear the taram or bhaganna which a similar land in the vicinity for which a taram or bhaganna has been specified in the said Tables bears.'
Explanation III is not relevant
We shall read Explanation IV also as a contention was raised with respect to that too.
'In this Act , 'Telengana Area' means the territories specified in sub-section (I) of Section 3 of the States Reorganisation Act 1956 and 'Andhra Area' means the territories of the State of Andhra Pradesh other than the Telengana area'.
We shall now read Rule 19 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules 1974:
'19. Fixation of taram or Bhaganna for a land for which no taram or bhaganna exists (1) For fixing the taram ore bhaganna in respect of a land for which no taram or bhaganna is recorded in the revenue or settlement records of the Government or which bears a taram or bhaganna not shown in the Table under clause 1 or clause 2 of the First Schedule to the Act the Tahsildar shall subject to confirmation by the Tribunal and after issue of a notice to the party affected, provisionally determine the taram or bhaganna having due regard to the taram or bhaganna of similar land in the vicinity for which a taram or bhaganna has been specified in the said table.
(2) For fixing a taram or bhaganna of a land deemed to be dry or wet under the Act, but is registered as wet or dry land in the land revenue accounts of the Government, the Tahsildar shall, subject to confirmation by the Tribunal, and after issue of a notice to the party affected provisionally determine the same having due regard to the taram or bhaganna of a similar registered dry or wet land in the vicinity.'
24. Sri M. R. K. Choudary, learned counsel for the petitioners submitted that having regard to the applicable provisions of law, there is nothing contained therein obliging the authorities concerned to apply the Taram system obtaining in Godavari District to the lands in question and, as such, the authorities concerned are free to consider the applicability or otherwise of both the Taram as well as Bhaganna system obtaining in Andhra as well as Telengana area to the facts of the case and the criteria that shall have to be taken into account by the authorities concerned, is the similarity of the land in the vicinity. There seems to be considerable force in the contention of the learned counsel for the petitioners.
25. Section 4 of the Act defines what the 'ceiling area' is by stating in Sub-section (1) that the 'ceiling area in the case of family unit consisting of not more than five members shall be an extent of land equal to one standard holding;' in Sub-section (2) 'the ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one-fifth of one standard holding for every such member in excess of five, so however, that the ceiling area shall not extend two standard holdings' and in Sub-section (3) 'the ceiling area in the case of every individual who is not a member of a family unit, and in the case of any other person shall be an extent of land equal to one standard holding.'
26. The extent of land that may constitute a standard holding for the class of the land specified in column I of the Table appended to Section 5 has to be determined after the land is classified as set out in the first schedule to the Act.
27. Taram and bhaganna are referred to in Explanation I to Schedule I as those registered in the revenue and settlement records of the Government as on the notified date. It is an admitted case that no taram or bhaganna with respect to the lands in question was registered in the revenue and settlement records of the Government.
28. The land or lands are such in respect of which no Taram or Bhaganna is recorded in the revenue of settlement records of the Government. In that case, the fiction employed in Explanation II comes into play that such land shall be deemed to bear the taram or bhaganna which a similar land in the vicinity for which a taram or bhaganna has been specified in the said table bears. For the purpose of applying this fiction, determination shall have to be made about the similarity of the land and the situation as regards the vicinity. For the purpose of fixing whether it is Taram or Bhaganna that is applicable to the lands in question the same spirit as contained in Explanation II to Schedule I is carried out in Rule 19 whereunder the Tahsildar, subject to the confirmation by the Tribunal and after issue of a notice to the party affected, is required provisionally to determine the taram or bhaganna having due regard to the taram or bhaganna of a similar land in the vicinity for which a taram or bhaganna has been specified in the said table. This is with a view to enable him to fix taram or bhaganna in respect of a land for which no taram or bhaganna is recorded in the revenue of settlement records of the Government.
29. We can straightway dispose of the contention based upon Explanation IV which merely says that under the Act, 'Telengana Area' means the territories specified in Sub-section (1) of Section 3 of the State Reorganisation Act, 1956 and 'Andhra Area' means the territories of the State of Andhra Pradesh other than the Telengana Area. This explanation comes into play when the expression 'Telengana Area' or 'Andhra Area' occurs in the provision of law falling for construction or consideration. The provisions of law as extracted above not make any mention about the expressions either Telengana area of Andhra Area. Therefore I am of the opinion that Explanation IV has absolutely no impact upon the interpretation applicable to the provisions of law as referred to supra.
30. Both the sides brought in sizable material in support of their rival respective contentions. I am not called upon to decide whether it is Taram system or Bhaganna system that is applicable to the facts of the case. That has got to be decided by the Tribunals constituted under the Act. What I am called upon to decide is whether the statutorily designated authorities are in any way prohibited or prevented from taking into consideration these two systems viz. Taram or Bhaganna. The concept of similarity of the land in the vicinity does not permit the possibility of infusing into it any political considerations. It appears as if it is the physical features aspect of the matter that has got to be taken into account.
31. The land shall have to be classified for the purpose of the Act as set out in the First Schedule. First Schedule provides for the classification of lands and deals with lands bearing tarams or bhagannas in each of the settlement tracts or groups. Explanation II deals with lands for which no taram or bhaganna is recorded in the revenue and settlement records of the Government. By way of fiction, such land shall be deemed to bear the taram or bhaganna which a similar land in the vicinity for which a taram or bhaganna has been specified in the said tables bears. The question that arises here is whether it is taram or bhaganna the lands in question should be deemed to bear, the Taram or Bhaganna has been specified bears. The respondent took the stand that it is the Taram system obtaining in Godavari Districts, that has got to be applied to the lands in question whereas the petitioners took the stand that it is Bhaganna system obtaining in Telengana that has got to be applied to the facts of the case. Rule 19 requires the Tahsildar provisionally to determine the Taram or Bhaganna of the lands in question having regard to the Taram or bhaganna of the similar land in the vicinity for which a Taram or bhaganna has been specified in the said table. The authorities are obliged in the first place to fix the Taram or bhaganna. For that purpose, they must have regard to the 'the similarity of the land in the vicinity'. That is the key concept in the present controversy. That key concept requires for its elucidation regard being had to certain innate, inherent and intrinsic properties of land detectible from within, coupled with proximity of situation aspect, rather than those discernible from without like matters of historical associations, political considerations and the kind of law prevalent in the land in question. For the purpose of ascertaining what is' the vicinity and what is the similar land or what is similar land in the vicinity'. It is the physical features aspect of the matter that is to be considered to be relevant and material. Therefore a reading of the language employed in Section 5 read with Explanation II in schedule I and rule 19 does not indicate that the discretion of the authorities concerned in the matter of ascertaining the similarity of the land in the vicinity aspect that they should have regard only to the Taram system but not Bhaganna system. I therefore agree with the contention of Mr. Choudary that it is open to the authorities concerned to consider the applicability of both the Taram system as obtaining in Andhra area as well as Bhaganna system as obtaining in Telengana area to the facts of the case as they have got to be determined having due regard to the similarity of the land in the vicinity aspect with the system it bears be it taram or bhaganna. The authorities concerned are not obliged to apply only the taram system disregarding the Bhaganna system. It is open to them to consider the applicability of this or that to the facts of the case according to exigencies, and arrive at their own independent conclusions.
32. Mr. Choudary raised yet another contention placing reliance upon Rule 19 that the notice issued thereunder is violative of the spirit contained in Rule 19. The contention was that the authorities concerned provisionally determined the Taram or bhaganna and thereafter they are issuing the notices whereas the purpose of the notice is to enable them to determine provisionally Taram or Bhaganna only after notice. I do not find any substance in this contention because it is open to the person to whom the notice was issued to persuade the authorities concerned to arrive at any conclusion on the basis of the material that may be made available by them. The approach that is required by the administrative authorities is not a doctrinaire one but it is a pragmatic one and therefore, I am satisfied that no prejudice is caused to the persons concerned to whom such notices were issued especially when they have an opportunity to persuade both the notice issuing authority as well as the other Tribunals to arrive at correct conclusions on the basis of the material, that may be made available by them.
33. The Learned Government Pleader raised the question that the writ petition is not maintainable as the petitioner approached this Court without exhausting the other alternative remedies provided under the Act. It is a fact that the petitioner approached this Court without exhausting the other legal remedies. But both the sides argued elaborately the matter before me expressing their inclination to have the opinion of this Court on the matters raised in this area. I therefore consider, under those circumstances, that this objection should not be allowed to stand in the way of the maintainability of this writ petition on that score.
34. The other ground raised is as regards the maintainability or otherwise of this writ petition in this Court on constitutional grounds.
35. The contention of the petitioner is that the power to classify the lands conferred upon the statutorily designated authorities under Section 5 read with Explanation II, Sch. I without providing guidelines under Section 29 of the Act amounts to conferral of unreasonable, arbitrary or discriminatory power. Before going to the question, we may at the outset dispose of an ancillary question raised as regards the validity or otherwise of Section 29 of the Act itself. Section 29 of the act reads thus:
29. 'Power to remove difficulties : If any difficulty arises in giving effect to the provisions of this Act, the Government may, be General or Special order published in the Andhra Pradesh Gazette make such provisions not inconsistent with the provisions of this Act, as appear to them to be necessary or expedient for the removal of the difficulty: Provided that no such order shall be made after the expiration of two years from the commencement of this Act'.
36. The invalidity of this provision of law is raised on the ground that that involves unconstitutional delegation of legislative power. The nature of the activity involved in this provision of law by which the Government is required to remove the difficulties is not essentially and exclusively legislative in character. The Government on whom the responsibility to give effect to the provisions of the Act is placed is required , if any difficulty arises in so giving effect to the provisions of the Act, to make such provisions not inconsistent with the provisions of the Act. The provisions that the Government is required to make should not be inconsistent with the provisions of the Act. The occasion for removing the difficulty should be only when it appears to them to be necessary or expedient while giving effect to the provisions of the Act. Moreover, as per the Proviso, that order shall have to be in operation only for two years from the commencement of the Act. No element of finality is attributed to the action taken by the Government under this Section, nor the Government is empowered to vary or alter the provisions of the Act. For the aforesaid reasons , I am satisfied that Section 29 is valid as not involving any unconstitutional delegation of power.
37. I am supported in this view of mine by a decision of A. N. Ray, C. J. in Gammon India Ltd. v. Union of India, : (1974)ILLJ489SC where the invalidity of Section 34 of the Contract Labour (Regulation and Abolition) Act, 1970 was raised on the ground of excessive delegation. Section 34 there provides that if any difficulty arises in giving effect to the provisions of the Act, the Central Government may, by order, published in the official gazette, make such provisions not inconsistent with the provisions of the Act as appear to it to be necessary or expedient for removing the difficulty. His Lordship said at page 968 of the report thus:
'In the present case, neither finality or alteration is contemplated in any order under Section 34 of the Act. Section 34 is for giving effect to the provisions of the Act. This provision is an application of the internal functioning of the administrative machinery. Difficulties can only arise in the implementation of rules. Therefore, Section 34 of the Act does not amount to excessive delegation'.
38. His Lordship had also noticed the decision in Jalan Trading Co. v. Mill Mazdoor Union, : (1966)IILLJ546SC where Section 37 of the Payment of Bonus Act, 1965 was held bad in law. In that Section 37, the order of the Central Government was rendered final. No such provision is there either in the present Act or in the Act came to be dealt with by Ray, C. J. in the above case. Justice Shah (as he then was) while delivering the judgment observed at page 703 thus:
'Power to remove the doubt or difficulty by altering the provisions of the Act would be in substance amount to exercise of legislative authority and that cannot be delegated to an executive authority'.
I do not find anything in Section 37 empowering the authorities concerned to alter the provisions of the act. But nonetheless the decision of Shah, J. (as he then was) in Jalan Trading Co. case was distinguished later by A. N. Ray, C. J. in Gammon India Ltd. case : (1974)ILLJ489SC .
39. The attack in this case is levelled against the power of the authorities to classify the lands. That power was conferred by Section 5 read with Sch. I particularly Explanation II thereof. According to the petitioners, in the absence of any guidelines being provided under Section 29 of the Act, this power shall have to be characterised as unreasonable , arbitrary and discriminatory. Provisions of law providing for the conferral of power characterised as unreasonable, arbitrary or discriminatory are liable to be attacked on the ground that they are inconsistent with Article. 14 of the Constitution . (see State of West Bengal v. Anwar Ali, : 1952CriLJ510 and Kathi Raning v. State of Saurashtra at page 123 of the same volume.)
40. The Andhra Pradesh Legislature enacted this Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 for the purpose of amending the law relating to the fixation of ceiling on agricultural holdings and taking over of surplus lands and to provide for the matters connected therewith. It provides for the determination of the surplus lands for the purpose of securing its distribution as house sites for agricultural labourers, village artisans or other poor persons owning no houses or house-sites or to the weaker sections of the people depending on agriculture for purposes of agriculture or for purposes ancillary thereto, in such manner as may be prescribed. (See Section 14). This Act was enacted with a view to giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article. 39 of the Constitution of India contained in Part IV of the Constitution.
41. In other words, the validity of law made by the State in its legislative capacity in this case by Andhra Pradesh Legislature applying the Directive principles of State Policy particularly those contained in clauses (b) and (c) of Article. 39 is assailed on the ground that it is inconsistent with Article. 14 contained in Part III of the Constitution.
42. We shall bear in mind some basic postulates of the Constitution before we answer the question posed.
43. I. People are Sovereign:
The Constitution was enacted by the people and it is for the sake of the people. The people are not made for the Constitution but the Constitution is made for the people. It is only a means to an end and not an end in itself. The people are sovereign.
44. II. The Constitution is merely an instrument of Government.
It is devised by the people through which to secure the fulfilment of the aspirations including social justice embodied in the preamble. It is a positive document not a negative document. The metamorphosis of the functions of the State necessitates laying of emphasis on the Constitution as a source of power and not as a barrier to the exercise of power. It is a social document. There is no sacredness about it as it is man-made.
45. III. Individualism gave way to collectivism:
The key note of 19th Century thought was individualism. The emphasis of common law was on individual rights like freedom of property, freedom of contract and freedom of the person. Interference with these freedoms was not to be countenanced. That concept was carried into the American Constitution. This reflects the philosophy underlying Part III of our Constitution, with the changes in the purpose and function of Government from its traditional role which is negative to the modern role which is positive. Laissez Faire dies with the dawn of the 20th century and today the State has to concern itself with the welfare of its members. This reflects the philosophy underlying Part IV of the Constitution.
46. Rugged Individualism and Sociological Individualism:
The age of 'rugged individualism' of 19th century has gone. Its place has been taken by sociological individualism of the present century. The dominant pattern is no more an individualistic society. It is a collectivist society.
47. IV. The Legislature is supreme in the Realm of Social Revolution:
Aristotle found the spring of revolution in inequality and the sense of injustice it engenders. He pointed out that this inequality included disparity of status as well as disparity of wealth. The broadening of the basis of consent is the best safeguard against revolution (Mac-Ivor; The Web of Government).
48. A survey of revolutions like English, French, American, and Russian Revolutions establish one fact i.e., the sense of injustice and a sense of inequality generated those revolutions, causing political, economic and social upheavals in the society. Patterns may vary but underlying principle is the same. The founding fathers of the Constitution must indeed be credited with the vision, imagination and foresight in providing for smooth transition through peaceful social revolution, averting the catastrophy of upheavals, be they, political, social and economic.
49. We are in the throes of a vast revolution. Never a time there was, in the annals of the history of any nation in the world, when such a social revolution so vast, so profound and so pervasive as we have today in India, pertaining to the lives of 600 millions of people being achieved by peaceful means. Millions of people have been denied the rights and opportunities to which they are entitled. Our national acknowledgment of that contained in Part IV of the Constitution, is itself a great revolutionary achievement. Still more revolutionary is its implementation through peaceful means. We have proclaimed our national obligation to repair the damage that this denial has inflicted. The pledge to the nation is sought to be redeemed in that direction through 'social welfare legislation' and through the implementation of measures like 'Twenty Point Economic Programme.'
50. 'The Constitution was created with the object of effecting social revolution. The core of the commitment to social revolution lies in Part IV and Part III' (Justice Ray (as he then was) in Kesavananda Bharathi's case : AIR1973SC1461 ).
51. The Fundamental Rights, the fundamental duties and Directive Principles are designed to be the chief instrument in bringing about the great reforms of Social Revolution. Realising that law has emerged as the chief instrument of social control, the framers of the Constitution entrusted to the State in its legislative capacity the responsibility of ushering in a welfare State, through making law by applying Directive Principles of State Policy with a declaration that they are fundamental in the governance of the country as not to permit any alien intrusion into the same, including from the judiciary.
52. Law under Article. 37 in Part IV which is public law is not amenable to judicial review under Article. 13(2) in Part III as Part IV is not made, unlike law made by the Legislature under Part XI which is private law, subject to the provisions of the Constitution. The purpose of private law is to confer rights, to impose duties and to create interests for regulating human conduct. It deals with personal justice i.e., 'Justice in Personam'. It concerns with rugged individualism. The purpose of public law is to usher in a welfare State by applying Directive Principles of State Policy (involving legislative wisdom and policy outside the ken of Judicial review). It deals with social Justice i.e., justice in rem. It pertains to sociological individualism. The tenor, the texture, the quality, the content and above all the purpose of public law is different from that of private law. Sociological approach to social welfare legislation obliges the judiciary to subject it to public law approach. Therefore, 'Law' in Article. 13(2) does not have as its referrent 'Law' in Article. 37.
'The Supremacy of the ordinary legislature over the judiciary is a basic component of modern political organisations. Grey recognises this when he says that one rule as to the sources of the law is 'clear and precise'.
'The State requires that the acts of its legislative organ shall bind the Courts, and so far as they do so, shall be paramount to all other sources. This may be said to be necessary consequence from the very conception of an organized community of men.'
'The legislature is usually made up of popularly elected representatives, and their function is primarily to make laws which will be applied by the other two branches. The subordination of the Courts to legislative norms is no less an important part of this scheme than is the independence of the judiciary from interference by the other two branches in the discharge of the judicial function.'
(Jurisprudence - 'Man and Ideals of the Law' by Patterson). P. 200.
53. Considering the advantage of legislation Solmond in his 'Jurisprudence' 12th Edition at p. 125 observed thus:
'.............................................................the first virtue of legislation lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists.'
'The great bulk of legislation is concerned with public law. It is for the most part of a social or administrative character, defining the reciprocal duties of State and individuals rather than the duties of individuals inter se.'
('Law in the Making' by C. K. Allen at p. 311).
54. V. Directive Principles in part IV are Fundamental but not the Rights in Part III.
Directive Principles, designed to achieve social justice, the founding father of the Constitution declared through Article. 37 in Part IV as fundamental but no such constitutional reckoning was accorded by any of the Articles in the Constitution to the rights conferred by Part III. Those rights as a matter of fact, are referred even in Article. 32 and 226 (not) as Fundamental Rights but only as rights conferred by Part III. These rights are also not absolute. The Directive Principles in Part IV are, therefore, fundamental but not the rights in Part III.
55. The Judges by their oath 'to uphold the Constitution' are obliged, through judicial process to maintain the fundamentality of Directive Principles by recognising the supremacy of Legislature in the realm of social revolution while making social welfare legislation.
56. VI. Provisions contained in Part IV are Rendered constitutionally unenforceable by any Court: But not the directive principles laid down therein:
Omission to keep and maintain this distinction resulted in the past in securing supremacy to the rights in Part III over the Directive Principles in Part IV by an unconscious and impermissible projection of the inhibition of unenforceability of the provisions in Part IV into the fundamental Directive Principles, those provisions contained. In the ultimate analysis, it is what the 'Constitution says' that is material but not what we say 'of' 'or' 'about' the Constitution.
57. VII. Social Welfare Legislation and 'Fundamental Rights' are not antithetical.
Law made by the State for securing 'Social Justice' through the application of Directive Principles of State Policy far from restricting the 'Fundamental Rights' extends and enlarges the same. There does not involve, in such law, any element of 'inconsistency with' or 'taking away' or 'abridgment of' Fundamental Rights.
58. VIII. Social Welfare Legislature is Non-Justiciable.
Law made by the State applying the 'Directive Principles' is non-justiciable in the sense that its validity cannot be questioned in any Court of law on the ground that it is 'inconsistent with' or 'takes away' or 'abridges' any of the Fundamental Rights.
59. Issues, Part IV and the law contained in Land Reforms Acts applying the principles laid down therein, give rise to, are non-justiciable and are not meant for judicial determination.
60. There is found, in Article. 38, 'a textually demonstrable constitutional commitment of the issue' of ushering in a Welfare State of Legislature 'a co-ordinate political department.' Under that Article. of the Constitution it rests with the State to decide as to how, when and in what form and by applying which principles of State Policy that objective is to be accomplished. Their decisions with respect to that is final and binding on every other department of the Government and cannot be questioned in a Court of law. The Courts are bound to take notice of such a decision and to follow it.
61. Concepts like 'welfare of the people,' 'social order,' 'social justice,' 'economic justice,' 'political justice' (Article. 38). 'common good,' 'common detriment,' 'Economic system,' 'concentration of wealth' (Article. 39) 'policy, principles fundamental in the governance of the country' (Article. 37) are all matters with respect to which there is a 'lack of judicially discoverable and manageable standards' for ascertainment and adjudication. These are all matters which can hardly be said to be within the appropriate range of evidence receivable in a Court of justice. They cannot be settled on strict legal principles. Decision on matters like these are wholly confined by our Constitution to the political departments of the Government. They are decisions of a king for which the judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or enquiry.
62. The Prime Minister Pandit Nehruji moving for consideration of the Constitution (Fourth Amendment) Bill in the Lok Sabha on March 14, 1955 said:
'On the other side, if I may say so with all respect to the judiciary, they do not decide about high political, social, or economic or other questions. It is for Parliament to decide. But, the ultimate authority to lay down what political or social or economic laws, we should have, is Parliament and Parliament alone; it is not the function of the Judiciary to do that.'
63. 'A Court is confined within bound of a particular record and it cannot even shape the record. Only fragments of a social problem are seen through the narrow widows of a litigation.' Even if the Court had innate or acquired understanding of a social problem in its entirety, it would not have at its disposal, adequate means for constructive solution.
64. Issues involving complaints against law made by the Legislature applying the fundamental principles in Part IV involve for their adjudication an impairment of the finality and binding nature of decision committed constitutionally to a co-ordinate political department of the Government and as such their validity cannot be questioned in a Court of law. What cannot be done directly cannot be permitted to be done indirectly.
65. Legislature policy and wisdom are outside the purview of judicial review.
66. While declining to express an opinion on political questions which are not justiciable Taney Chief Justice of the Supreme Court of United States, speaking for the Court of United States, speaking for the Court in 1849 said in Luther v. Borden, (1849-12 Law ed 581) after having referred to the power of the Supreme Court to judge the limits of the jurisdiction of the Legislature and the Executive.The Court not to overstep the boundaries which limits its own jurisdiction.'This Tribunal, therefore, should be the last to overstep the boundaries which limits its own jurisdiction.67. It may be noted, in this connection, that non-justiciable provisions contained in the Constitution or in the laws made thereunder are not in any way inferior to the justiciable provisions either in status, dignity or efficacy. The judges are bound by their oath to uphold the Constitution and the laws (vide Venkateswarlu v. District Revenue Officer, 1975-1' Andh W. R. 213.)
68. IX. Property is a Social Creation and is subject to Social control:
The Blackstonion Conception that 'the earth and all things therein are the general property of all mankind;' that of Thomas Jefferson that 'the earth belongs in usufruct to the living, the dead have neither powers nor rights over it, each generation has a right to determine the law under which it lives, that of Walter Lippman that 'the earth is the general property of all mankind; Rights of ownership are assigned by law to promote the grand ends of civil society; the title to the earth lies in mankind in the people as a corporate community;' that of Jeremy Bentham that 'rights are the fruits of law and of the law alone'; and that of Immanuel Kant that 'property was a social creation and is subject to social control Echoing and reverberating through the corridors of time, find their grand and eloquent expression in Part IV of the Constitution especially in Article. 39 where it is affirmed by the people 'that the ownership and control of material resources' belong to the community and that they should be so distributed as 'to sub-serve the common good.'
69. The rights of property ............................................................... are a creation of the laws of the State. And since the laws can be altered there are no absolute rights of property. There are legal rights to use and enjoy and to dispose of property. The law defines what are the rights to use and to enjoy and to dispose of property, which the Courts will enforce (Lippman). The laws of property may and should be judged, reviewed and when necessary amended, so as to define the specific system of rights and duties that will promote the ends of society.
70. The traditional concept that the primary role of law is to restrain individuals from wrongful conduct and to regulate property interests is no longer valid. Law has been one of the major instruments through which our society seeks to accomplish social change.
71. Law has been man made. It grows out of man's social experience. It is a social institution, a product of the society which it governs. Law is a social order. It has become an instrument of social control. The final cause of law is the welfare of the people. Law creates rights, distributes them and modifies them. The people are the owners of these rights. The distribution of these rights is not a thing fixed for ever. It is a matter for constant adjustment and readjustment in the light of changing concept of social justice.
72. Rights of the people and social control through law are not antithetical. They are not mutually exclusive either. The power of the State, manifesting through Law is extended, with the object of securing greater equality in personal rights, particularly in economic sphere and of organising public resources for common good. There does not involve in these extensions of State power any loss of personal liberty much less any sacrifice of liberty for equality. Liberty is no more to be the exclusive preserve of the chosen few. Freedom can never be absolute. The freedom of each is limited by equal claims of others. Whenever there are great inequalities of power, freedom cannot be general. In order to secure freedom for all, it is necessary that all should be equally protected against the abuse of power and that the power of the State should be employed to reduce or remove arbitrary inequalities and to ensure that the common resources should be used not for personal ends but for the general well-being. That is the grand aim of Part IV.
73. In the formulation of any theory of social justice, man need not and in fact should not be taken as an individual set against society. The dignity and individuality of the individual which the constitution exalted could have relevance only in a human social context. Men realise their individuality and their humanity only as social beings. That is the meaning we find in the growth of social legislation and social control through law. The power of social justice finds its outlet in the method of sociology. Therein lies the relationship between Part IV and Part III.
74. There is a transition from the conception of personal rights inhering in individuals and limiting the law, to a conception of rights as defining social relations and of law as based on rights so defined. Personal liberty and State control are not necessarily opposed. man is relational and social justice is conceived as a concept that applies to man in his social relations.
75. Justice Mahajan (as he then was) observed:
'Fundamental rights granted by our Constitution were not meant merely for the benefit of individuals but were put there as a matter of public policy.'
(Behram Khurshid v. State of Bombay, 0065/1954 : 1955CriLJ215 ).
76. The rights of the individual 'may have to give way to ensure opportunities for others who have hitherto been denied them. But the restricting still has been in the interest of individuals. We have really widened out range of interest in individuals going beyond those who had substantial rights to defend to those who had none. (J. A. Corry 'The Future of Public Law P. 22, 23').
77. X. The Legislature, the executive and the Judiciary are to act in Colloboration and smite in Unision:
The State manifests its will through Legislature, in the form of law, gets it implemented through Executive and interpreted and applied through the Judiciary. In a sense, all branches of Government the Legislature, the Executive and the Judiciary make or create law, direct legislation by the Legislature subordinate legislation by the Executive and judgemade law, also known as subordinate legislation, by the judiciary. The attitude that there is some sort of competition or rivalry among these branches of Government ceases to have any relevancy whatsoever in the context of the changed role of modern Administrative State in the realm of social revolution. The proper functioning of the various branches requires collaboration and respect but not rivalry. The need for the ushering in of social revolution demands that all three arms of the Government should 'smite' in unision for its achievement. (The phrase is that of Lord Delvin). That is the command of the Constitution contained in Article. 37 as per which the process of governance of this country is to be carried on by lawmaking instrumentalities by applying Directive Principles of State Policy while making laws and by-law applying and enforcing instrumentatively by interpretating and construing such laws, enforcing the principles embodied therein.
78. XI. Social Revolution Through peaceful means Synthesizing fundamental rights with directive principles on the basis of social justice through social order is the grand aim of the Constitution for Establishing Equality - Oriented society.
The people realising that all citizens do not have the right to acquire, hold and dispose of property and other rights mentioned in Article. 19 and that most of the persons do not have the right to equality and equal protection of laws mentioned in Article. 14, provided for the same through those Article. in Part III. That is not enough. Not at all, Necessary conditions shall have to be created for the acquisition and enjoyment of these rights. They have provided for that through State action in Part IV.
79. The contribution of modern India towards would thought consists in its endeavour towards the establishment of equality oriented society, based upon social justice, through a peaceful social revolution recognising and reconciling the rights and duties of the individual and the unity and integrity of the Nation.
80. Social Justice and the Constitution.
'Social Justice' is one of the ideals as the preamble to our Constitution proclaims which is intended to be achieved. That should be the basis for a social order by securing and protecting which as effectively as it may, the State shall have to strive to promote the welfare of the people (Article. 38). The concept of 'social justice' is thus formulated into one of the Directive Principles of State Policy (Part IV) which are declared as fundamental in the governance of the country (Article. 37) with a mandate to the State to apply the same in making laws.
81. The State (here the Andhra Pradesh Legislature) made law contained in 'The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1973, giving effect to the Directive Principles of State Policy particularly those specified in cls. (b) and (c) of Article. 39 of the Constitution of India (see the declaration in Section 2 of the Act), providing for the taking by the Sate of surplus lands over the ceiling area from those who have in order to distribute the same among those who do not have.
82. Justice is conceived of as a concept that applies to man in his social relations. It is 'a quality relating to men in society.' Kelson calls it 'primarily a quality of the social order'. 'Justice consists in serving and promoting the social good. Law itself it just or unjust as it serves or fails to serve the good of society. So too, rights belong to man only as he is associated with others in a society.' Justice is a social norm and applies only to men in their social relations (From 'The Idea of Justice by Otto A Bird'.)
83. Social Justice is justice in rem whereas personal justice is justice in personam. (These words are of Lord Delvin). 'We can use the word to mean 'social justice' and there we say that a law is just if it conforms to some social principles, such as that all men are equal. This is justice in rem. We use it also to mean justice in personam, that is between parties to a dispute. Personal justice in a community is dependent on the existence of laws and its exercise consists in the just administration of them. Social justice is above the law; it is the body of principles with which the law should conform. Social justice guides the law maker; the law guides the judge.' (Lord Delvin).
84. XII. Social Welfare:
The law of social welfare grew up on the theory that welfare is a 'gratuity' furnished by the State.
85. Society today is built around entitlement. Many of the most important of these entitlements flow from Government. It is only the entitlements of the poor although recognised by the Constitution that have not been effectively enforced. The poor are no more to be blamed for their poverty. Poverty is the consequence of large impersonal forces over which the poor have no control. The poor are affirmative contributors to today's society and the today's society recognises that they have a right not a mere privilege to a minimal share in the common wealth.
86. The idea of entitlement is simply that when individuals have insufficient resources to live under conditions of health and decency, society has obligations to provide support and the individual is entitled to that support as of right. To the greatest degree possible public welfare should rest upon a comprehensive concept of actual need spelled out in objectively defined eligibility that assures a maximum degree of security and independence. The concept of equal treatment also inheres in entitlement.
87. We need a radically new approach to the field of social welfare. In a society, that is highly organised, institutional and bureaucratic law is the essential means by which individuals are protected. Today law has become our central instrument of social policy.
88. In a constructive alliance of law and social welfare, there lies hope for a fundamental change in the status of the disadvantaged of our society, a bill of rights for the disinherited. (Individual Rights and Social welfare - The emerging legal issues by Charles A Raight (1965) 74 Yale Law Journal p. 1245).
89. XIII. Social Justice Needs New Law, New Principles, New Remedies, New Machinery and New Men.
Social justice means justice in depth not only penetrating and destroying the inequalities of sex, race and wealth but also supporting the weak and the exposed. It appears to need not law, new principles, new remedies, new machinery and new men.
90. Social justice (as our society now understands the term) requires the law to be loaded in favour of the weak and the exposed to provide them with financial and other support and with access to Courts, Tribunals and other administrative agencies where their rights can be enforced.
91. The demand for new law makes its impact in those fields more particularly concerned with the weak and the exposed notably in the fields of health, housing, national insurance, supplementary benefit, in all of which one finds significantly the role of the traditional Courts and the legal profession questioned in theory and diminished in practice and responsibility placed upon new style decision making bodies, some of which (e.g., the Supplementary Benefit Appeals Tribunal) have only the most tenuous link with the legal system.
92. The social challenge involved arises from a combination of two recently emerged but fundamental social beliefs. The first is that men and women are not to be denied the opportunities of personal happiness, to be achieved not as others think fit, but as they wish it. The second is that we are all entitled to the active protection of the State against the ills of Poverty, disease and old age. The fair distribution of wealth among all members of society has become a human right as important to the law as the right of property. The welfare schemes are based upon entitlement as right.
93. Undoubtedly, a more positive approach is now called for from the law to the problems of daily life, if only because a more positive contribution in terms of money and administration help is called for from the Government.
94. XIV. Challenge of the Welfare State:
The challenge to the law is subtle but pervassive; and unanswerable unless the legal profession is prepared, when it enters this new world, to discard some professional attitudes and practices which, because they have been with us for so long appear to be fundamental principles of the law.
95. The common law is treated as a private law system, concerned essentially with the person, the property, and the reputation of the individual. Its primary concern has been to defend private property and to distribute justice between individuals in dispute with each other. The key figure is the client seen as one whose property or person has been wrongfully damaged, diminished, or put at risk by another; and the key concept is the cause of action i.e., loss or injury arising or threatened from an infringement of a personal or property right. The business of the Courts has thus been distributive justice handed down by the judges from their lofty but completely detached position; the State's interest has been to do justice between man and man. From this outlook and approach there has arisen the common law's lack of concern with public law. Public law is concerned with the rights and obligations of the State in the setting of municipal law. Being a 'Lawyer's law' system based on judicial precedent, it encourages the belief that only lawyers may explain, interpret and develop it.
96. These attitudes and practices have nothing in common with the thinking that lies at the root of the welfare State. The State has descended from the lofty perch of detachment which is its resting place in the common law and is now a participator with activity (associated with the welfare of the people). The principles which govern social security are not legal rules but policy governing the administration of benefit provided by the State from public funds.
97. The entire welfare system is conceived as a system of rights dependent upon eligibility.
98. The law must discard some of its historical accretions in meeting the challenge of the welfare State. The world of rights and obligations (pertaining to welfare State) are not amenable to the control of the ordinary Courts of the land.
99. The common law concepts have failed because they have been ultimately no more than means for protecting private rights and enforcing private obligations. The law has never understood or accommodated a public (Social) right or obligation in the environment.
100. The general legal system conceived as one based on common law principles has not proved an acceptable instrument of (social control).
101. A legal system which offers only distributive justice, conceived on common principles cannot effectively protect the general public or the weak, the poor, the aged and the sick.
102. The State shall have to make provision for Society as a whole and for those not strong enough to provide for themselves.
103. Thus the welfare state is challenging the relevance or at least the adequacy of the common laws concepts and classifications.
104. (On the negative side). We can no longer rely on distributive justice concepts of property and individually owned rights, judgemade law, the adversary system and a legal profession historically educated.
(Vide English law - The New Dimension by Sri Leslie Scarman).
105. Judicial Tradition and Social Legislation:
The civilian variety of abuses of logic in statutory interpretation has been flavoured in England by the deep rooted common law tradition of judicial hostility to legislation, 'The common lawyer is at his worst when confronted with a legislative text.' (Pound). There has long been a canon of construction requiring that status 'in derogation of' the common law shall be strictly construed. The effect of such a cannot today when legislation is a major (perhaps the major) source of law must obviously be serious - English Courts have often inhibited themselves from 'seizing the spirit of institutions and situations which are in substance the creatures of modern legislation' ('Legal System and Lawyers' Reasoning' by Julius Stone).
106. Lord Write said, 'I venture respectfully to think that the view of the Court of appeal illustrates a tendency common in construing an Act which changes the law, that is, minimise or neutralise its operations by introducing notions taken from or inspired by the old law which the words of the Act were intended to abrogate and did abrogate. (Rose v. Ford 1937 AC 826 at p. 846).
107. When an individualist common law is modified by collectivist legislation, we sometimes see an unsympathetic construction. Thus the real basis of Housing Legislation is a sacrifice of private rights of ownership in order to make possible a planned attack on the problem of the provision of suitable accommodation - hence an over emphasis on the presumption against interference with the private rights of the land owner led to a defeat of the real purpose of the Act. (Paton : Jurisprudence III Edition P. 218).
108. That was the reason why Jennings said in 49 Harward Law Review (1936), 426 that the judiciary shall not interpret social legislation against public policy in the interest of private property. (Vide K. Suryanarayana v. District Co-operative Officer, : AIR1976AP340 (FB).
109. THE JUDICIAL PROCESS:
An attempt to broaden the approach to statutory interpretation was made in Newzealand by the Acts Interpretation Act, 1924 which lays down that 'Every Act shall be deemed remedial and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.'
110. Pennsylvania has attempted to overcome rigid interpretation by a Statutory Construction Act which abolishes, the rule that statutes in derogation of the common law are to be strictly construed. (Jurisprudence by Paton II Edn. 43 Dickinson LR (1938-9) 236).
111. Even man clearly, the Swiss Civil Code of 1907, directs the judge to decide as if he were a legislator when he finds a gap in the law guided by 'approved legal doctrine and judicial tradition.' (Freidman Law in changing society, 1959).
112. A more recent version of the same idea is Article. 3 of the Italian Civil Code of 1942 which directs the Court in cases that remain doubtful after the exhaustion of normal methods of construction to decide 'according to the general principles of the jurisprudential organisation of the State.'
113. Judicial Process and Public Law approach:
Social policy is the inarticulate major premise in the judicial decision while adjusting law to the changing social environment. Sociological jurisprudence insists as a matter of value, that the social advantage of the rule should be its major test, since the welfare of society is the general aim of law, the main function of law being the furtherance of values of given time and place.
114. The function of the Courts is to reflect the contemporary needs and prevailing values consonant with legislative and executive declaration of policy. (Vide judgment of Full Bench if Crl. M. P. No. 205 at 1975, D/- 23-4-1976): (reported in : AIR1976AP375 ) (FB).
115. The Common law ante-dates legislative process. The emphasis of the common law was on freedom of the person, freedom of contract and freedom of property. It is treated as private law system. Common law's lack of concern with public law which is concerned with the rights and obligations of the State in the setting of Municipal law is too well known. The common law has never understood or accommodated a public right in the changed environment. The Modern Welfare State with its expanded functions is challenging the relevance or the adequacy of the common law concepts and classifications and principles.
116. The age of 'rugged individualism' of nineteenth century has gone. Its place has been taken by sociological individualism of the present century. The dominant pattern is no more an individualistic society. It is a collectivist society.
117. The tremendous expansion of functions of general welfare has changed the concept of the State so that from being mainly an instrument of power, it has become in a large measure an agency of service. The powers and functions of the Government are not opposed to the rights and liberties of persons. The former exists for the latter and the latter realises through the former.
118. Social justice, the goal of judicial process consists in serving and promoting social good. Man need no more be taken as an individual some how set against society.
119. There is a transition from the conception of personal rights inhering in individuals and limiting the law to a conception of rights as defining social relations and of law as based on rights so defined. Personal liberty and state control are not necessarily opposed. man is relational and social justice is conceived of as a concept that applied to man in his social relations.
120. This process of transition and transformation of the concepts like welfare State individual liberty and rights can be accomplished smoothly and successfully only through creative judicial process by subjecting the private law concepts to public law approach by a conscious recognition, of the shift of emphasis from the individual to the Society.
121. Has the Judiciary failed to meet the challenge of Social Revolution ?
Social Welfare: The law of social welfare grew up on the theory that welfare is a 'gratuity' furnished by the State, Society today is built around entitlements, flowing from Government, Society recognises that they have a right not a mere privilege to such entitlement. We need a radical new approach to the field of social welfare. Law has become our central instrument of social policy to protect the interests of the dis-advantaged and the disinherited of our society. Social Revolution demands a constructive alliance between law and social welfare.
122. Social Justice: Social justice requires law to be loaded in favour of the weak and the exposed to provide them what they need, on the basis that they are entitled for the same as a matter of right. A more positive approach is now called for from law towards the problem of social welfare.
123. Challenge to Legal System: The common law is treated as a private law system concerned essentially with individual rights and justice in personam in justice between man and man. Its lack of concern with public law and justice in rem in justice between the State and man and social rights resulted in traditional common law's judicial hostility towards modern social legislation. This attitude on the part of the judiciary resulted in invalidation of social legislation in U. S. A. there and till recently here in India. The world of rights and obligations pertaining to welfare State are not amenable to the control or ordinary Courts of law.
124. It has become archaic and anachronistic to apply the principles of common law with its individualistic outlook to the interpretation or construction of modern welfare legislation with its collectivist outlook. Such an approach far from furthering the object of legislation frustrates the same. The welfare state is challenging the relevance of at least the adequacy of the common law concepts and classifications and principles. The State shall have to make provision for society as a whole.
125. Social justice needs new law, new principles, new remedies, new machinery, new outlook and new men which with very rare exceptions only, we can find with present existing judicial system.
126. The responsibility for the success of social revolution cannot be placed upon the judiciary as it could not have been the intention of the framers of the Constitution.
127. The change in the meaning and emphasis of terms and concepts like 'social welfare state,' 'Social Justice,' 'Social Rights,' 'Social Duties, 'Sociological individualism,' 'Sociological approach towards social welfare legislation,' the judiciary is hardly equipped to assess and evaluate in their proper perspective with its adversary type of litigation. We cannot blame a system for not doing that for which it was not brought into being.
128. Two Suggestions:
(i) For ushering in a welfare State, through social revolution, the responsibility for administering law relating to welfare legislation, shall have to be placed not upon the Courts but upon a hierarchy of Administrative Tribunals with a control one at the apex, if needs be with power to the Courts, to decide issues of law, if referred to them, by those Tribunals.
129. (ii) Amendment of the Constitution or the General Clauses Act, on the following lines:
2. 'It shall be the duty of the Courts or Tribunals to interpret or construe social welfare legislation in such way as to secure the implementation of the Directive Principles of State Policy in Part IV of the Constitution.'
130. As has already been seen, the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act , 1973, is a law enacted by the State of Andhra Pradesh Legislature for the purpose of consolidating and amending the law relating to the fixation of ceiling on agricultural holdings and taking over of surplus lands and to provide for the matters connected therewith.
131. This Act is enacted with a view to giving effect to the policy of the State towards securing the principles specified in Clause (b) and (c) of Article. 39 of the Constitution of India. It provides for making available surplus lands over the ceiling area for the purpose of securing its distribution by the Government for use as house-sites for agricultural labourers, village artisans or other poor persons owning no houses or house-sites or for the purpose of transferring to the weaker Section of the people depending upon agriculture for purposes of agriculture or for purposes ancillary thereto in the prescribed manner.
132. Having regard to the propositional position set out in the foregoing pages, I am of the opinion that the law made by the State in its legislative capacity, here the Act in question, applying the Directive Principles of State Policy mentioned in Part IV of the Constitution is not in any way inconsistent with or take away or abridge the rights mentioned in Part III of the Constitution including those mentioned in Article. 14 of the Constitution nor is such law justiciable in a Court of law in the sense that its validity can be questioned.
133. For the reasons aforesaid. I am satisfied that there are no merits in this writ petition. The Writ Petition is therefore, dismissed with the aforesaid observations but, in the circumstances, with out costs. Advocate's fee Rs. 250/-.