Holding that right to equality guaranteed under Article 14 of the Constitution to every person in India was not to be applied mechanically without examining the rigours and mechanics of the controversy sought to be resolved, the Supreme Court recently in Transport & Dock Workers Union v. Mumbai Port Trust declared that it was incumbent upon the judiciary not to overstretch situations. The Court was dealing with the challenge to the correctness of the decision of Bombay High Court which had interfered in a writ petition brought about by a section of workers challenging their larger working hours in comparison to those appointed earlier.
Holding that reasonable classification was permissible and since the differential treatment was on account of certain policy decisions taken by the management, the Supreme Court declared that the challenge to the differences on grounds of Article 14 was unfounded. The Supreme Court went on to declare that if the differentiation was "conductive for functioning of modern society", the classification was reasonable enough so as to sustain any challenge on grounds of discrimination.
The Court inter alia observed as under;
Holding that reasonable classification was permissible and since the differential treatment was on account of certain policy decisions taken by the management, the Supreme Court declared that the challenge to the differences on grounds of Article 14 was unfounded. The Supreme Court went on to declare that if the differentiation was "conductive for functioning of modern society", the classification was reasonable enough so as to sustain any challenge on grounds of discrimination.
The Court inter alia observed as under;
2. Article 14 of the Constitution (the equality provision) is a slippery slope, and a fine balancing act must be done by the Court to avoid slipping down the slope.
3. As observed by Lord MacMillan in ‘Law and Ethics’ 49 Scot. L. Rev.61, 69 (1933)
“The judiciary is constantly confronted with the necessity of making a choice between a legal principle which is sought to be applied in a particular case, and the choice which it makes in the particular instance resulting inevitably in the expansion or restriction of the principle applied or rejected.”
4. The judicial process is thus not a bucket of readymade answers, but a process, or technique, for easing an endless flux of changing social tensions. This is illustrated in this case.
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15. From the record the following facts emerge :
(i) As a matter of practice, duty hours of the personnel working on indoor establishment including typist-cum-computer clerk was seven hours, which included half an hour lunch break;(ii) The respondent-Port as a matter of policy decided to include a condition in the offer of appointment that was given to the personnel who were selected for being appointed as a typist-cum-computer clerk after1.11.1996 that they will have to work in shift of eight hours duration;(iii) They were to give their acceptance of this term, and it was only on their acceptance of the term that they were given appointment;(iv) It is an admitted position that so far as the personnel working on out door establishment of the respondent no.1 are concerned their duty hours were identical to the typist-cum-computer clerk appointed after 1.11.1996;
(v) As a result of change in the policy after 1.11.1996 in the indoor establishment of the respondent-Port, there were typist-cum-computer clerks appointed before 1.11.1996 whose duty hours were seven hours and there were typist-cum-computer clerks appointed after 1.11.1996 whose duty hours are eight hours; Except for different duty hours all other conditions of service of typist-cum-computer clerks working on the indoor establishment of the respondent no.1 were identical.
16. In the light of these admitted facts, the question to be considered is whether the action of the respondent no.1 in prescribing different working hours for typist-cum-computer clerks working in their indoor establishment with reference to their date of appointment is contrary to the guarantee contained in Article 14 of the Constitution.
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20. In our opinion Article 14 of the Constitution does not take away from the State or its instrumentality the power of classification, which to some degree is bound to produce some inequality vide State of Bombay vs. Balsara AIR 1951 SC 318. However, in our opinion, mere inequality is not enough to violate Article 14. Differential treatment, per se, does not constitute violation of Article 14. It denies equal protection only when there is no reasonable basis for differentiation vide Ameerunnissa Begum vs. Mahaboob Begum AIR 1953 SC 91 (para 11), Babulal Amthalal Mehta vs. Collector of Customs AIR 1957 SC 877 (para 16) etc.. If the law or the practice deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
21. It has been repeatedly held by this Court that Article 14 does not prohibit reasonable classification for the purpose of legislation or for the purposes of adoption of a policy of the legislature or the executive, provided the policy takes care to reasonably classify persons for achieving the purpose of the policy and it deals equally with all persons belonging to a well defined class. It is not open to the charge of denial of equal protection on the ground that the new policy does not apply to other persons. In order, however, to pass the test of permissible classification, as has been laid down by the Supreme Court in the catena of its decisions, two conditions must be fulfilled; (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that the differentia must have a rational relation to the object ought to be achieved by the statute in question, vide Gopi Chand vs. Delhi Administration AIR 1959 SC 609 (see also Basu’s ‘Shorter Constitution of India, fourteenth edition 2009 page 81).
22.Thus the classification would not violate the equality provision contained in Article 14 of the Constitution if it has a rational or reasonable basis.
23. However, the question remains: what is ‘rational’ or ‘reasonable’? These are vague words. What may be regarded as rational or reasonable by one Judge may not be so regarded by another. This could lead to chaos in the law.
24. Should this vagueness or uncertainty be allowed to remain so that Judges may have total freedom or discretion? We think not. The law should be, as far as possible, clear and certain so that people know where they stand and conduct their affairs accordingly. Also, if total freedom is given to Judges to decide according to their own individual notions and fancies the law will run riot.
25. Hence in our opinion an attempt should be made to clarify the meaning of the words ‘reasonable’ or ‘rational’.
26. Numerous decisions of this Court on Articles 14 and 19 of the Constitution have no doubt held certain classifications to be reasonable while other classifications have been held to be unreasonable. But what is reasonable and what is unreasonable does not appear to have been discussed in depth by any decisions of this Court, and no tests have been laid down in this connection. All that has been said is that it is not prudent or pragmatic to insist on a mathematically accurate classification covering diverse situations and all possible contingencies in view of the inherent complexities involved in society, vide State of Karnataka vs. Mangalore University Non Teaching Employees Association (2002) 3 SCC 302 (para 10), Ombalika Das vs. Hulisa Shaw (2002) 4 SCC 539 (para 11) etc.
27. In our opinion while it is true that a mathematically accurate classification cannot be done in this connection, there should be some broad guidelines.
28. There may be several tests to decide whether a classification or differentiation is reasonable or not. One test which we are laying down and which will be useful in deciding this case, is : is it conducive to the functioning of modern society? If it is then it is certainly reasonable and rational.
29. In the present case, as we have noted, the purpose of the classification was to make the activities of the Port competitive and efficient. With the introduction of privatization and setting up private Ports, the respondent had to face competition. Also, it wanted to rationalize its activities by having uniform working hours for its indoor and outdoor establishment employees, while at the same time avoiding labour disputes with employees appointed before 01.11.1996.
30. In the modern world businesses have to face competition with other businesses. To do so they may have to have longer working hours and introduce efficiency, while avoiding labour disputes.
31. Looked at from this point of view the classification in question is clearly reasonable as it satisfies the test laid down above.
32. We do not mean to say that the above is the only test to decide what is reasonable, but in our opinion it is certainly one of the tests to be adopted if we want our country to progress. We have to take a practical view of the matter instead of relying on abstract, a priori notions of equality.
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38. In our opinion, since the classification with reference to the date of appointment of typist-cum-computer clerks was for the purpose of bringing about uniformity in working hours of the personnel working in indoor and outdoor establishments, and its aim was to make the organization competitive and efficient, it cannot be said that it was unreasonable and hence violative of Article 14 of the Constitution. Also, avoidance of labour disputes is a reasonable basis for the classification.
39. In our opinion, Article 14 cannot be interpreted in a doctrinaire or dogmatic manner. Absolute and inflexible concepts are an anathema to progress and change. As observed by the great Justice Holmes of the U.S. Supreme Court, the machinery of the government would not work if it were not allowed some free play in its joints vide Missourie, Kansas and Tennesee Railroad vs. May 194 U.S. 267(1904). Excessive interference by the judiciary in the functions of the executive is not proper. In several decisions, we have held that there must be judicial restraint in such matters, vide Divisional Manager, Aravali Golf Club vs. Chander Hass (2008) 1 SCC 683. In Government of Andhra Pradesh vs. P. Laxmi Devi (2008) 4 SCC 720 the doctrine of judicial review of statutes has been discussed in great detail, and it has been observed that the judiciary must show great restraint in this connection.
40. Those who entered service after 1.11.1996 knew that they have to work for seven and half hours excluding lunch break and with open eyes they accepted the employment. Hence there is no question of violation of Article 14 of the Constitution.
41. In our opinion, fixing of hours of work, provided they do not violate any statutory provision or statutory rule, are really management functions and this Court must exercise restraint and not ordinarily interfere with such management functions.
42. Differential treatment in our opinion does not per se amount to violation of Article 14 of the Constitution. It violates Article 14 only when there is no conceivable reasonable basis for the differentiation. In the present case, as pointed out above, there is a reasonable basis and hence in our opinion there is no violation of Article 14 of the Constitution.
43. In our opinion it is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in the present case. In view of the inherent complexities involved in modern society, some free play must be given to the executive authorities in this connection.
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45. In our opinion, there is often a misunderstanding about Article 14 of the Constitution, and often lawyers and Judges tend to construe it in a doctrinaire and absolute sense, which may be totally impractical and make the working of the executive authorities extremely difficult if not impossible.
46. As Lord Denning observed :
“This power to overturn executive decision must be exercised very carefully, because you have got to remember that the executive and the local authorities have their very own responsibilities and they have the right to make decisions. The Courts should be very wary about interfering and only interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise you would get a conflict between the courts and the government and the authorities, which would be most undesirable. The courts must act very warily in this matter.” (See ‘Judging the World’ by Garry Sturgess Philip Chubb).
47. In our opinion Judges must maintain judicial self restraint while exercising the powers of judicial review of administrative or legislative decisions.
48. “In view of the complexities of modern society”, wrote Justice Frankfurter, while Professor of Law at Harvard University, “and the restricted scope of any man’s experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution. These insights Mr. Justice Holmes applied in hundreds of cases and expressed in memorable language : It is misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong.”
49. In writing a biographical essay on the celebrated Justice Holmes of the U.S. Supreme Court in the dictionary of American Biography, Justice Frankfurter wrote :
“It was not for him (Holmes) to prescribe for society or to deny it the right of experimentation within very wide limits. That was to be left for contest by the political forces in the state. The duty of the Court was to keep the ring free. He reached the democratic result by the philosophic route of skepticism-by his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest.” (see `Essays on Legal History in Honour of Felix Frankfurter’ edited by Morris D. Forkosch.)
50. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges’ preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not. In the words of Chief Justice Neely, former Chief Justice of the West Virginia Supreme Court of Appeals :
“I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financer, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator.”
51. In administrative matters the Court should, therefore, ordinarily defer to the judgment of the administrators unless the decision is clearly violative of some statute or is shockingly arbitrary. In this connection, Justice Frankfurter while Professor of Law at Harvard University wrote in `The Public and its Government’ -
“With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government. The great judges are those to whom the Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people.”
52. In the same book Justice Frankfurter also wrote -
“In simple truth, the difficulties that government encounters from law do not inhere in the Constitution. They are due to the judges who interpret it. That document has ample resources for imaginative statesmanship, if judges have imagination for statesmanship.”
53. In legal scholarship, Roscoe Pound challenged the rigid formalism of Justice Field. Pound strongly argued against a jurisprudence founded upon immutable first principles and sought in the social sciences and related fields a means for making the law responsive to a changing world.
54. As observed by Justice Frankfurter :
“It would be comfortable to discover a Procrustean formula…….. If such were the process of Constitutional adjudications in this most sensitive field, it would furnish an almost automatic task of applying mechanical formula and would hardly call for the labors of Marshall or Taney, of Holmes or Cardozo. To look for such talismanic formula is to assume that the broad guarantees of the Constitution can fulfill their purpose without the nourishment of history.”
55. In Keshavanand Bharti vs. State of Kerala AIR 1973 SC 1461 (vide paragraph 1547) Khanna,J. observed :
“In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error.”
56. In the present case there was a reasonable basis for the classification, and hence there is no violative of Article 14 of the Constitution.
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