1. This matter has been referred to this Court by the learned Ses. J. of Birbhum under the provisions of a circular letter addressed to all Courts by this Court calling their attentions to the provisions of Article 228 of the Constitution of India. This Court being satisfied that the case transferred involved a constitutional point, notice was given to the parties & the constitutional point involved has been the subject-matter of argument before us.
2. The constitutional point involved in this case is whether or not the West Bengal Hindu Social Disabilities Removal Act of 1949 is ultra vires the Constitution of India.
3. On 3-1-1951, one Banamali Das lodged a, complaint before the Sub-Divisional Officer of Suri against the accused & others alleging that the accused had refused to cut the complainant's hair & also to render services to other persons who belong to the same caste as the complainant, his caste being that of a cobbler or leather worker. After recording the evidence of the complainant the Sub-Divisional Officer issued process against the accused under Section 8 read with Section 3 (c), West Bengal Hindu Social Disabilities Removal Act, 1948. The case was eventually transferred to a Magistrate for disposal & a date was fixed for taking evidence in the case. An application was made to the learned Ses. J. to refer, the case to the High Court as required by the Circular Letter as the case involved a substantial question of constitutional importance & should be decided by the High Court as required by Article 228 of the Constitution of India.
4. Before the Ses. J. it was contended that the Act was ultra vires in that it unreasonably restricted the petitioner in the exercise of his profession or calling of a barber. Further it was said that the Act contravened Article 14 of the Constitution as it was discriminatory in its tendency.
5. Mr. Ajit Kumar Dutta who has appeared on behalf of the petitioner, the accused-barber, has challenged the Act in question on both these grounds and in order be appreciate the argument it will be necessary shortly to consider the provisions of the impugned Act. The Act is entitled:
'An Act to provide for the removal of certain social disabilities suffered by some sections of Hindus'. Then follows the preamble which is in these terms:'Whereas it is expedient to foster a spirit of unity & harmony amongst all classes of people &, to that end, to provide for the removal of certain social disabilities suffered by some sections of Hindus.'
It is quite clear from the title of the Act & the preamble that the object of the legislation was to remove certain social disabilities suffered by some sections of Hindus & thereby foster a spirit of unity & harmony amongst all classes of people residing within the confines of this State. Section 2 (a) of the Act defines 'Hindu' as including a Buddhist, Sikh, Jain, Santal, Adibasi, a follower of Arya or Brahma Samaj or a convert to Hinduism or any other person habitually professing himself to be a Hindu, The other definitions are not very material in this case Section 3 provides:
'Notwithstanding anything contained in any instrument or any law, custom or usage to the contrary, no Hindu shall merely on the ground that he belongs to a particular caste or class
(a) be ineligible for office under any authority constituted under any law, or
(b) be prevented from having access to' various places & enjoying certain benefits.
He cannot, for example, be prevented from having access to or offering worship at a temple, having access to a river, tank, water-tap or other watering places, or having access to or using any public conveyance, or using any building used for charitable or public purposes, or having access to a place of public amusement, or a shop, or any place set apart or maintained for the use of Hindus generally or be prevented from enjoying any benefit under a charitable trust created for the benefit of Hindus generally. Then follows paragraph (c) which is in these terms:
'...... no Hindu shall merely on the ground that he 'belongs to a particular caste or class ...... be denied any service -whatsoever whether in connection with civic, social or religious practices or rites, by a Hindu who habitually renders such service in the course of his profession.'
It is this para, which is the main subject of attack & to which I shall return later.
6. Section 4 provides that there shall be no discrimination on the grounds of caste or class & s. 5 enjoins the Courts not to recognise any custom or usage imposing disability on a Hindu on the ground of caste or class. Section 6 provides that local authorities are not to recognise any custom or usage imposing disability on the ground of caste or creed & Section 7 enacts that
'no Hindu shall be denied admission to any school, college or other educational institution, meant for the public merely on the ground that he belongs to a particular caste or class.'
Section 8 provides penalties & it is declared by Sub-section (1) (a) of Section 8 that whoever denies to any Hindu any service referred to in Clause (c) of Section 8 commits an offence & shall, be punished with imprisonment for a term which may extend to three months, or with a fine, or with both.
7. Mr. Ajit Kumar Dutta first contended that we should have to hold this Act ultra vires because the definition of 'Hindu' was far too wide & that the Act would cover oases which could not possibly have been in the minds of the Legislature. The term 'Hindu' is defined in a very wide manner. But I cannot see that the Act is ultra vires by reason of such definition. Jains & Sikhs are frequently classed with Hindus though they are not Hindus & so are Santals & Adibasis. Buddhists are not Hindus or at least do not profess the Hindu religion. But they are often Indians in the true sense of the word. There is nothing, I think, objectionable in including these classes as Hindus & making the Act applicable to them. The scheme of the Act is that none of these classes of persons covered by the term ''Hindu' can act to the detriment of certain castes or classes of Hindus. In short, the general scheme of the Act is to protect the lower castes against being discriminated against by the higher castes & to make all castes or classes of Hindus equal in the social, civic & religious fields.
8. It was then contended that Clause (c) of Section 3 of the Act was ultra vires & offended in particular against Article 19(1)(g) of the Constitution. That Article provides that all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. That right however is subject to the limitations set out in Clause (6) of that Article which provides:
'Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, & In particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business '
Mr. Dutt's argument is that Clause (c) of Section 8 interferes with his right to practise his profession as a barber or to carry on his occupation of a barber.
9. There is nothing in the Act which cuts down his right to carry on the profession of a barber. Had the Act provided that no Hindu should perform the services of a barber in connection with any low caste Hindu then it might well be said that his right to practise his profession had been seriously curtailed & interfered with. The Act does not prevent the petitioner from carrying on the profession of a barber. All it does is to prohibit him discriminating between one Hindu & another in carrying out his duties as a barber. The Act compels him to serve all alike & really enlarges the scope of his services rather than restricts the same. Strictly therefore it cannot be said that this Act imposes any restrictions on the right to carry on the profession or occupation of a barber. What it does do is to impose restrictions on the petitioner's view of what he as a barber should be called upon to do. I greatly doubt whether this Act can be said to impose a restriction on the practice of his profession It enjoins that he should not discriminate & should serve all alike & not that he should not serve persons whom he wishes to serve. It compels him to serve persons whom he does not wish to serve & it is only to that extent that it could be said to impose restrictions on his conception of what a barber should be called anon to do.
10. Even assuming that Clause (c) of Section 3 did impose a restriction on the petitioner's right to practise the profession or occupation of a barber, that would not end the matter because the law can provide for restriction if they are reasonable in the interests of the general public. It seems to me that the words 'interests of the general public' can only mean the public interest. This Act, as the preamble states, was passed in order to foster a spirit of unity & harmony among all classes of people. A spirit of unity & harmony is utterly impossible if these social disabilities are allowed to continue. That was the view of the Legislature & this Act was passed to remove those social disabilities & thereby foster & encourage the much-sought-for spirit of unity & harmony. Can it be said that the restrictions imposed by Clause (c) of this Act are more than are reasonably necessary in the public interest? It appears to me that the public interest nowadays demands that everything should be done to foster unity & harmony & to knit all people together into one harmonious whole. The citizens of India should not be sub-divided, but should form a united body & that is an end which is rightly sought for by our law-making bodies. The makers of the Constitution have recognised it & have abolished untouchability & have also provided that there should be no discrimination only on the ground of caste or religion. In other words the Constituent Assembly recognised that unity & harmony could only be obtained by abolishing these age-old social distinctions & it appears to me that imposing restrictions with a view to fostering this spirit of unity & harmony would be imposing restrictions which are no more than necessary in the public interest. That being so, it appears to me that this Act & in particular, Clause (c) of Section 3 cannot possibly be said to be ultra vires, because it offends against Article 19(1)(g) of the Constitution.
11. It was then suggested that this Act offends against Article 14 of the Constitution which provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. I fail to see how this Act or any provisions in it offends against this Article. Article 14 is directed against discrimination & what the impugned Act wishes to abolish is discrimination by Hindus. The Act does not discriminate, but penalises & abolishes tendencies in Hindu society to discriminate. Clause (c) of Section 8 of the Act directs that persons rendering services to other Hindus are not entitled to discriminate & refuse to perform such services on the ground of the caste or class of particular Hindus. This Act does not deny any person equality before the law. It tends to make all persons equal in society & before the law & I do not think it can possibly be argued that this Act denies persons equal protection of the laws. In my view it cannot possibly be said that the Act is ultra vires because it offends against Article 14 of the Constitution.
12. It was suggested faintly that the Act might offend against Article 15(1) of the Constitution which provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. This Act does not discriminate against any citizen only on the ground of caste, or religion, or race. It makes it impossible for some Hindus to discriminate against other Hindus. That does| not offend against Article 18 of the Constitution.
13. Lastly it was suggested that in so far as the Act applies to particular castes or classes of Hindus it went too far. 'Class' it was said was a much wider term than 'caste'. But I do not think it is necessary to discuss the effect or the use of the word 'class' in this section. If the Act was ultra vires in so far as it applied to 'Class' the words 'or class' where they appear are clearly severable in the Act & the Act would still be intra vires in so far as it applied to Caste'. I find it difficult to appreciate the argument as to how it can be ultra vires because of the use of the word 'class'. In any event, in the present case the allegation was that the petitioner had refused to perform the services of a barber at the request of the complainant because of the latter's low caste & it seems to me that the Act under which the petitioner is prosecuted cannot possibly be regarded as ultra vires the Constitution.
14. Mr. Dutt contended that denial of the services of a barber would not come within Clause (c) of Section 3 of the Act, because what a Hindu cannot deny another is any service in connection with civic, social or religious practices & his argument was that the services of a barber is not in connection with either civic, or social or religious practices. This is not a matter which we can con-rider & it will be a matter for the trial magistrate be decide whether the service performed by a barber conies within Clause (c) of Section 3. The words 'civic, social or religious practices' are extremely wide & it may well be contended that they embrace practically all services which one Hindu could render to another, certainly services rendered for payment. That however is not a matter which this Court at this state is called upon to consider.
15. For the reasons given I am satisfied that the impugned Act-- The West Bengal Hindu Social Disabilities Removal Act, 1948--is not ultra vires the Constitution & therefore the prosecution cannot be disposed of on that ground. I may add that the view we take of this matter is that already taken by Roxburgh J. in an unreported case.
16. The records are therefore returned to the trial Magistrate through the learned Ses. J. of Birbhum & the trial Court will proceed to dispose of the case on the merits. It must accept the decision of this Court upon the Constitutional point.
17. I agree.