KAISER BAHADUR THAPA Vs. STATE

JUDGEMENT

(1.) Order:- The Sikkim Court Fees (Exemption and Miscellaneous Provisions) act, 1983, exempting all persons whose annual income does not exceed Rs, 25,000/- from the liability to pay any Court-fees in respect of any legal proceeding, has been challenged by the Petitioner as being violative of the equality clause of the Constitution. We have heard the learned counsel in support of the petition and the learned Government Advocate appearing for the State and we have no doubt that the petition must be dismissed for the reasons stated hereunder.

(2.) The Preamble of the Indian Constitution states that the people of India have solemnly resolved "to secure to all its citizens : Justice - social, economic and political. . . . . Equality of stauts and of opportunity". The Objectives Resolution from which the above phrase has been carved out stated: "the Constituent Assembly declare its firm and solemn resolve to draw up for her future governance a Constitution -"a) wherein shall be guaranteed and secured to all the people of India justice social, economic and political; equality of status, of opportunity and before the law. "article 14 of the Constitution guarantees to every citizen equality before the law and equal protection before the law. But how these rights can be exercised by those poorer sections of the society who have been continuously oppressed, suppressed and exploited for years together? Though the rights enumerated in the Part III of the Constitution have been designated as 'fundamental' or enforceable rights, but if a person does not have the barest minimum of material well-being so as to be able to exercise these rights, how can he think of enforcing them. Majority of the people were accordingly unable to claim any relief from a Court of Law in absence of the means to pay Court Fees, typing charges and other fees which are generally required to be paid to knock at the door of the Court. It shook the conscience of the Parliament which led to the introduction of Art. 39a of the Constitution of India in Part IV of the Constitution. And now that the new Art. 39a, inserted in 1976 as one of the Directive Principles of the State policy, has mandated that "the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or scheme or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities", any measure, seeking to abolish payment of court-fees, cannot but be regarded to be a further and welcome step towards implementation of the aforesaid Directive. It is true that even though Art. 37 declares the Directive Principles to be "fundamental in the governance of the country" and mandates, "the State to apply these principles in making laws", yet that very Article also declares that these Directives "shall not be enforceable by any Court". Therefore, however fundamental these principles may be in the governance of the country, no person can move the Court for the implementation or enforcement of these principles. But notwithstanding such non-enforceability, if the concerned Legislature in the discharge of its Constitutional obligation imposed by Art. 37 makes a law implementing one or more of the Directives, it becomes the law of the land and the Judiciary would be under the same Constitutional obligation to apply the law and in fact would be failing in its duty if it does not give effect to the provisions of such a law at the instance of a person who has obtained any right or benefit under the legislation. Time barred debt, for example, is obviously unenforceable by the creditor against the debtor; but if the debtor nevertheless chooses to pay the debt to the creditor, the right of the latter to the amount paid becomes absolute and indefeasible and entitled to all protections in law, even though the payment thereof was not enforceable at all. Therefore, even though the implementation of these Directives is unenforceable at the instance of a private individual against the State, yet if the State proceeds to implement any of them by making a law in accordance with the Constitutional mandate in Art. 37, then the rights of the beneficiaries under the law would, like all other legal rights, be legally enforceable. The Legislatures are under a Constitutional obligation imposed by Art. 37 to make laws implementing the directives and, if they make any such law, the Courts would also be under a similar Constitutional obligation imposed by that very Article to apply that law in their decisions. This is what has been pointed out by Mathew, J. in Kesavananda Bharati, AIR 1973 SC 1461 at p. 1949 where the learned Judge has further observed that the State, which has been commanded by Art. 37 to apply and implement the Directives, would include its judicial organ also as judicial function is both making and application of laws. In enforcing a law implementing the Directives, the Courts are not enforcing the Directives themselves, which, as such, have been declared to be unenforceable by Courts, but are only enforcing a law which the Legislature has made to implement the Directives in accordance with the mandate of the Constitution.

(3.) Our apex Court has, since the decision in Chandra Bhawan, AIR 1970 SC 2042, expressed its great care and anxious advertence towards the implementation of the Directives; but it was nevertheless realised that even a law implementing the Directives may not always appear to be wholly consistent with the one or the other of the fundamental rights and thus may run the risk of being void to the extent of such inconsistency, unless the relevant fundamental rights are outweighed by express declaration to that effect as in Art. 31 A, Art. 31c and the like. Our apex Court has, therefore, evolved a new principle of construction of reading the Directives into the Fundamental Rights so that they may co-exist with, and not strike at, each other. In Akhil Bharatiya Soshit Karmachari Sangh, AIR 1981 SC 298, Chinappa Reddy, J. , has pointed out (at 335) that "it follows that it becomes the duty of the Court to apply the Directive Principles in interpreting the Constitution and the laws", "the Directive Principles should serve the Courts as a Code of Interpretation" and "fundamental Rights should thus be interpreted in the light of the Directive Principles and the latter should, wherever possible, be read into the former". The learned Judge observed further that "every law attacked on the ground of infringement of a Fundamental Right should, among other considerations, be examined to find out if the law does advance one or other of the Directive Principles or if it is not in discharge of some of the undoubted obligations of the State, constitutional or otherwise, towards the citizens, flowing out of the Preamble, the Directive Principles and other provisions of the Constitution. " In a later decision in Randhir Singh, AIR 1982 SC 879 the Supreme Court, speaking through the same learned Judge, has observed (at 881) that the "directive Principles, as has been pointed out in some of the judgments of this Court, have to be read into the Fundamental Rights as a matter of interpretation" and in that case the equality clause in Arts. 14 and 16 was construed in the light of the Preamble of the Constitution and the Directive Principle contained in Art. 39 (d) and the constitutional goal of the State was almost converted into a constitutional right of the citizen. We have adverted to all these at some length only to bring home that the age-old assurance in favour of the constitutionality of a Statute would, in view of the Code of Interpretation evolved by our apex Court as pointed out above, stand all the more assured and fortified if the Statute concerned is found to have as its main objective the implementation of one or more of the Directive Principles. Not that a directive-implementing statute can not be void for violating the Fundamental Rights; our apex Court has not, as yet, taken us that far; but that the Court must make utmost endeavour to hold that a Statute implementing the Directives does not affect the Fundamental Rights, by reading the former into the latter, unless such reading is patently and manifestly impossible. The command of the Constitution to apply the Directive Principles in making laws must, as pointed out by Chinnappa Reddy, J. for the Supreme Court in Uttar Pradesh State Electricity Board, (AIR 1979 SC 65 at p. 69) , ever be present in the mind of the Judges when interpreting statutes which concern themselves directly or indirectly with the matters set out in the Directive Principles of the State Policy and while the Courts are not free to direct the making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles. The net result appears to be that while, as already noted, the approach of the Courts to all Statutes, which are always clothed with the presumption of constitutionality, should be "ut res magis valeat quam pereat", i. e. to allow it to flourish than to perish, our approach must be all the more so when a Statute proceeds to implement any of the Directive Principles.