N.K. BAJPAI versus UNION OF INDIA AND ANR.

Citation: [2012] 2 S.C.R. 433 · Decided: 15-03-2012 · Supreme Court of India · Bench: A.K. PATNAIK · Disposal: Dismissed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2012] 2 S.C.R. 433 
N.K. BAJPAI 
v. 
UNION OF INDIA AND ANR. 
(Civil Appeal No. 2850 of 2012) 
MARCH 15, 2012 
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.) 
Customs Act, 1962 - s. 129 (6) - Restrictions under -
Constitutional validity of - Held: The restrictions imposed u/ 
A 
B 
s. 129(6) is not unreasonable or ultra vires the Constitution-
C 
Every right is subject to reasonable restriction - Right to 
practice, being a statutory right as well as fundamental right 
under Article 19(1)(g) of the Constitution, can be subjected to 
restriction relating to the professional and technical 
qualifications necessary for carrying out that profession -The o 
restriction u/s. 129(6) is limited and not absolute and is 
intended to serve a larger public interest - Limited restrictions 
are neither violative of the Fundamental Rights nor do they 
tantamount to denying equality under Article 14 - The 
restriction would be held valid except where the challenge is E 
on the ground to legislative incompetence or when the 
restrictions imposed are exfacie unreasonable, arbitrary and 
violative of Fundamental Rights - The element of likelihood 
of legal bias which was sought to be prevented by the 
restrictions, was neither presumptuous nor without any basis F 
or object - Constitution of India, 1950 - Articles 14 and 
19(1)(g). 
Judicial bias -·The element of bias itself may not always 
necessarily vitiate an action - It depends on the facts of each 
case. 
Retroactive Operation: 
Restrictions imposed on advocates to appear before a 
G 
433 
H 
434 
SUPREME COURT REPORTS 
[2012) 2 S.C.R. 
A limited forum - Held: The enforcement of restriction 
retroactively would not be impermissible - It is not for the 
courts to interfere with implementation of a restriction which 
is otherwise permissible in law. 
8 
· Law enforced retrospectively and law (n operation 
retroactively - Distinction between - Retrospective Operation. 
Words and Phrases: 
'Reasonable' - Meaning of, in the context of Constitution 
c of India. 
'Bias' - Meaning and inference of - Discussed. 
The common questions for consideration in the 
instant appeals were (i) whether Section 129(6) of the 
D Customs Act, 1962 (as introduced by Finance Act, 2003) 
stipulating that on demitting office as Member of the 
Customs Excise and Service Tax Appellate Tribunal 
(CEST AT) a person shall not be entitled to appear before · 
the CESTAT, is ultra vires the Constitution of India and 
E (ii) whether s. 129(6) was applicable to the appellants. 
It was interalia contended on behalf of the appellants 
that the entire restriction was based on an illogical 
presumption of likelihood of bias and therefore the 
F amendment is liable be declared ultra vires; that the 
provisions of s. 129(6) of the Customs Act cannot be 
given effect to retrospectively; and that the appellants 
could continue to appear before the Tribunal as they 
were permitted to do so in terms of s. 146A of the 
Customs Act, 1962, despite the provisions of s. 129(6) of 
G the Act. 
Dismissing the appeals, the Court 
HELD: 1.1 Part Ill of the Constitution is the soul of the 
H Constitution of India. It is not only a charter of the rights-
N.K. BAJPAI v. UNION OF INDIA AND ANR. 
435 
that are avartable to Indian citizens, but is even completely 
A 
in consonance with the basic norms of human rights, 
recognized and accepted all over the world. The 
fundamental rights are basic rights, but they are neither 
uncontrolled nor without restrictions. Exceptions apart, 
normally the restriction or power to regulate the manner 
B 
of exercise of a right would not frustrate the right. It is 
difficult to anticipate the right to any freedom or liberty 
without any reasonable restriction. Besides this, the State 
has to function openly and in public interest. The width 
of the expression 'public interest' cannot be restricted to c 
a particular concept. It may relate to variety of matters 
including administration of justice. [Para 7] [449-G-H; 450-
A-F] 
1.2 No person can be divested of his fundamental 
rights. They are incapable of being taken away or D 
abridged. All that the State can do, by exercise of its 
legislative power, is to regulate these rights by imposition 
of reasonable restrictions on them. The restriction can be 
imposed only by or under the authority of law. It cannot 
be imposed by exercise of executive power without any 
E 
law to back it up. Each restriction must be reasonable. A 
restriction must be related to the p

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