An important test that can be applied in cases that challenge the validity of any legislation or subordinate legislation is the direct and immediate effect test. Under this test, even if the object of the law is to further public interest, if its direct effect is the infringement of either a fundamental right or, in the case of delegated legislation, a statutory right, the law will be held invalid. It is unfortunate and regrettable that several judgments conclude in favour of the State, primarily based on the object which a law is intended to serve, without adequate regard to the effect of the law on the rights of the citizen. This is particularly true in cases relating to human rights and taxation where the effect on the rights of an accused or a taxpayer is often ignored, mainly based on the interest of the State, but with little regard to the direct and immediate effect on the rights of the citizens.
In the historic case of State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, almost fifty armed men committed crimes of “utmost brutality” in Dum Dum, West Bengal. They were directed to be tried under a special enactment that provided for a speedier trial but with lesser safeguards. The Attorney-General justified the special procedure on the ground that the legislation had a laudable objective and was made in public interest. The fact that there was discrimination would only be a byproduct that should not offend Article 14. There was no intention to have inequality of treatment, and the law was made in the general interest of administration. In a beautiful passage, Chandrasekhara Aiyar J. observed that almost every legislature has a public purpose and is generally intended to promote the general progress of the country, and is for better administration. Although the intention behind the legislation may be unexceptionable, and the objects may be praiseworthy, the question as to whether the legislation is discriminatory has to be determined not by its purpose or object, but by its effect. On this ground, Aiyar J. and other judges struck down the particular enactment, even though it resulted in the quashing of the trial of 49 armed men.
In R.C. Cooper v. Union of India, (1970) 1 SCC 248, also known as the Bank Nationalisation case, a bench of 11 judges overruled the view taken in A.K. Gopalan, AIR 1950 SC 27, which had held that it is the object of the legislature, and not its impact on fundamental rights, that needs to be considered. Decisively rejecting this argument, it was held that neither the object of the legislation nor the form of action, but the effect of the law and its action upon the rights of the person, will determine the relief to be granted.
What has to be seen is not the object of the law, but its direct operation on the individual’s right. This view was reiterated in Bennett Coleman and Company v. Union of India, (1972) 2 SCC 788.
The restrictions on the number of pages that a newspaper could print, and the import policy for the import of newsprint were challenged. While the page limit was struck down, the import policy was partly struck down. The majority held that the pith and substance of the subject matter of the law may be relevant to the question of legislative competence, but is irrelevant to the question of infringement of fundamental rights. The true test is to determine whether the effect of a legislative measure, or a State action, is to take away or abridge fundamental rights.
The court also made the important observation that the direct subject matter may be quite different, but what is relevant is its effect on a fundamental right. Thus, the law may deal directly with the defence of India or defamation, but may yet have a direct effect on the freedom of speech. Such a law would not be saved under Article 19(2). The object of the law or the executive action becomes irrelevant once it is established that there is an infringement of fundamental rights. In this background, it was held that though the object may be to conserve foreign exchange or deal with the availability of newsprint, the effect was to restrict the number of pages of a newspaper, and thus directly affect its circulation. Such a restriction was clearly outside the scope of Article 19(2).
The direct and immediate effect test was unnecessarily modified in Maneka Gandhi v. Union of India (1978) 1 SCC 248. Bhagwati, J. observed that “if the test was merely of direct or indirect effect, it would be an open-ended concept and in the absence of operational criteria for judging “directness”, it would give the Court an unquantifiable discretion to decide whether in a given case a consequence or effect is direct or not”.
Therefore, he suggested the proper concept to be applied is the criteria of inevitable consequences or effect. It is submitted that this was never the issue in the Maneka Gandhi case. By adding the new criterion of “inevitable consequences”, the test becomes more complicated and difficult to apply. The words “unquantifiable discretion” is only a contradiction in terms. A discretionary power is meant to be “unquantifiable”; it is to be left to the judge to determine whether the effect is “direct and immediate.”
This observation was cited by Chandrachud, J. in his partly dissenting opinion in the nine-judge case of Jindal Stainless Steel Ltd. v. State of Haryana, (2017) 12 SCC 1, 488. The earlier test of direct and immediate effect was simple and easily applied. Bhushan J., in the same Jindal decision, has rightly observed that the direct and immediate effect test as laid down in Atiabari case, and approved in the Automobile Transport case will still hold the field.
It is submitted that the “inevitable consequences” test needs to be rejected and the older and easily applicable test of direct and immediate effect should be applied. What is relevant is the impact and effect of the decision and not what its inevitable consequences may be.
An important application of the “direct and immediate effect” test is to section 43D(5) of the Unlawful Activities (Prevention) Act, 1967. The proviso to this clause enables the denial of bail on the basis of entries in the case diary, which are inadmissible in evidence. The object of this sub-section, and the Act may be to prevent unlawful activities, but its direct and immediate effect is the violation of Article 21 by making it impossible to grant bail. Sadly, courts have repeatedly applied this section and denied bail, without examining the direct and immediate effect of the law.
It must be noted that it is the petitioner who has to establish, with tangible material, the possible infringement of a fundamental right to demonstrate the direct and immediate effect of a legislative measure or an executive action. Once such material is furnished, the courts must apply this test and strike down any legislative or executive action that has the effect of violating fundamental rights.
Arvind Datar is a Senior Advocate of the Supreme Court of India.