SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL versus GIRISH KUMAR NA V ALAKHA & ORS.

Citation: [1975] 3 S.C.R. 802 · Decided: 03-03-1975 · Supreme Court of India · Bench: A.N. RAY · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

80 2 
SUPERINTENDENT AND REMEMBRANCER OF LEGAL 
. AFFAIRS, WEST BENGAL 
v. 
GIRISH KUMAR NA V ALAKHA & ORS. 
March 3, 1975 
[A. N. RAY, CJ .. K. K. MATHEW, v. R. KRISHNA IYER AND 
A. C. GUPTA, JJ.] 
Constitution oi India, 1950, Art. 14-Purpose of dzaUenged classification 
in doubt-Concept of 'purpose' and 'similar situations', when can be resorted 
to-Legislature if can be given benefit of doubt abo'ut its purpose. 
A 
B 
Constitution of India, 1950, Art. 14-Under-inclusive classification. meaning 
C 
of-Under-inclusive classification, when permissible. 
' 
Foreign Exchang.~ Regulation Act, 1947, Section 23-Two difjer!'llf prv-
cedures for dealing with persons cdntra1•eni11g the Act-Benefit of inquiry by 
Director of Enforcement not available to persons dealt with under s. 23 (I A)--
Classification, if unreasonable. 
. 
The respondents were tried for having committed offences under s. 4 ( 3), 
20(3) and 22 of the Foreign Exchange Regulation Act, 1947 read with s. 120-11 
of 1he Indian Penal Code and s. 23 of the Act. The Court discharged th1~ 
respondents in view of the decision of the H:gh Court of Calcutta in M,I s Serll-
juddin & Co. and Ors. v. Union of India and Ors. Civil Rules Nos. 2183 (W) of 
1966 and cases Nos. 1998 and 1999 of 1963 decided on 16-9-1971, holding that 
s. 23(Al) was violative of Art. 14 of the Constitution. The appellaii.t filed :a 
revision pet.ition against the order, before the High Court. The High Court 
conc;urred with the decision of the trial Court and dismissed the revision. This 
appc:al, by special Jeave, is against that order dismissing the revision, 
It was contended for the respondents that s. 23 pro¥ides for two different 
procedures for deali11g with contravention of the provisions of the Act. That 
is tc> say, irersons who have contravened the provisions specified in s. 23 (I) (a) 
and are found guilty by the Director of Enforcement need not face prosecution 
in a criminal court if the Director is of opinion that the penalty he is em-
powered to impose would be ad~quate punishment, whereas, the peraons aJleged 
to contravene the other provisions of the Act have necessarily to face prose· 
cution in criminal court without being given the benefit of an inquiry by the 
· Din:ctor of Enforcement and the opportunity to the delinquents to convince 
him that imposition of penalty by him would be adequate punishment even if 
they are found guilty. The classification made in s. 23 (1) is under-inclusive 
and is, therefore, unreasonable. 
Allowing 1he appeal, 
HELD : (i) When th1~ purpose of a challenged classification is in doubt, 
D 
E 
F 
the courts attribute to the classification the purpose thought to be most pro-
G 
hable. Instead of asking what purpose or purposes the statute and other 
materials reflect, the court may ask what constitutionally permissible objective 
this statute and other rele1<ant materials could plau~ibly be construed to reflect. 
The latter approach is the proper on~ in economic regulation· cases. The 
decisions dealing with economic regulation indicate that courts have used the 
concept of 'purpose' and 'similar situations' in a manner which give consider· 
abte k~way to the legislature. This approach of judicial restraint and pre-
sumption of constitutionality requires that the legislature is given the benefit 
H 
of doubt about its pu·pose. [805H-806C] 
(ii) Often times the courts hold that unc1er0inclusion does not deny the 
equal protection of Jaws under Article 14. In str1.ct theory, this involves an 
A 
lB 
D 
F 
I 
IH 
SUPDT. LEGAL AFFAIRS v. GIRISH (Mathew, J.) 
803 
abandonment of the principle that classification must include all who are simi-
larly situated with respect to the purpose'. This under-inC!usion is often ex-
plained by sa}'ing thav the legislature, is free to remedy parts of a mischief or 
to recognize degrees of evil ana strike at the harm where it thinks it most 
acute. There are two main considerations to justify an under-inclusive classi-
fication. First, administrative necessity. 
Second, the legislature might not 
be fully convinced that the particular policy which it adopts will be fully suc-
ce~sf'ul or wise. Thus to demand application of the policy to all whom it 
might logically encompass would restrict the opportunity of a state to make 
experiment. These techniques would shew that some sacrifice 
of 
absolute 
equality may be required in order that the legal system may preserve the 
flcxib'..lity to evolve new solutions to

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