To the question about reconciling the various American authorities, he merely smiled and said: ‘No, my Lords.’ It was not for him to attempt to reconcile the irreconcilable, especially since it was not he who was leaning on the American cases for support. Indeed, had not even Dr Cooley said he was ‘somewhat at sea’ when attempting to determine the meaning of ‘public purpose’ in the light of conflicting judicial decisions? But why mention that? ‘No, my Lords,’ was enough.
Non-geographically speaking, the Chief Justice had been somewhat on the sidelines during the last few minutes. Now he too entered the fray.
Having looked once more at the crucial articles and having doodled a fish on the pad in front of him, he cocked his head to one side and said: ‘Now, Mr Advocate-General, I understand that the state contends that the two payments, the flat-scale compensation and the wealth-based, sliding-scale rehabilitation grant, are of an entirely different nature. One is compensation, the other not. Thus they cannot be lumped together, and it cannot be said that the compensation is on a graduated or sliding scale, and it cannot therefore be called discriminatory or unequal against large landlords.’
‘Yes, my Lord.’
The Chief Justice waited in vain for elaboration. After a pause he continued: ‘And it is further argued by the state that the two payments are different because, for example, different sections of the Zamindari Act relate to these two payments; because there are different officers in charge of their disbursement – Rehabilitation Grant Officers and Compensation Officers; and so on.’
‘Yes, my Lord.’
‘Mr Bannerji’s contention for the applicants, on the other hand, was that this distinction is mere sleight of hand, especially since the compensation funds are only about a third of the rehabilitation funds.’
‘No, my Lord.’
‘No?’
‘Not sleight of hand, my Lord.’
‘And he says,’ continued the Chief Justice, ‘that since the distinction was not mentioned in the legislative debates until a late stage, it was introduced by the government after the adverse Patna High Court judgment as a way of fraudulently getting around the constitutional protections.’
‘The act is act, my Lord. Debates are debates.’
‘And what about the preamble to the act, Mr Advocate-General, which makes no mention of rehabilitation as an objective of the legislation?’
‘O-ver-sight, my Lord. The act is act.’
The Chief Justice leaned his head on his other arm. ‘Now suppose we were to accept your – that is, the state’s – contention that the so-called compensation is all there is by way of real compensation under Article 31 clause 2, how would you then describe the so-called rehabilitation grant?’
‘Ex-gratia payment, my Lord, which state may freely make to anyone in any way it chooses.’
The Chief Justice now leaned his head on both his hands, and examined his prey.
‘Would the protection from judicial challenge that Article 32 clause 4 provides to compensation extend to ex-gratia payments as well? Could the unequal terms – the sliding scale – of this ex-gratia payment not still be challenged under Article 14, which provides for the protection of equal laws?’
Firoz, who had been listening to the argument with the utmost attentiveness, looked at G.N. Bannerji. This was precisely the point he had been veering towards in the conference that evening. The distinguished lawyer had taken off his spectacles and was polishing them very slowly. Finally, he stopped polishing them altogether, and stood completely still, looking – like everyone else in court – at the Advocate-General.
There was silence for a good fifteen seconds.
‘Challenge to ex-gratia payment, my Lord?’ said Mr Shastri, appearing genially shocked.
‘Well,’ continued the Chief Justice, frowning, ‘it works on a sliding scale to the detriment of the larger zamindars. The smallest ones get ten times the computation based on rent and the largest ones get only one-and-a-half times the computation. Different multiples, ergo unequal treatment, ergo unfair discrimination.’
‘My Lords,’ protested Mr Shastri, ‘ex-gratia payment confers no legal rights. It is pri-vi-lege conferred by the state. Therefore, it is not open to question on ground of un-fair dis-cri-mi-na-tion.’ But the Advocate-General was not smiling quite as broadly. This had become almost a one-to-one cross-examination. The other judges did not interpose any questions.
‘Now, Mr Advocate-General, in America it, has been held by their Supreme Court that their fourteenth amendment – to which our Article 14 happens to correspond in language and spirit – applies not only to liabilities imposed but to privileges conferred as well. So would that not apply to ex-gratia payments?’