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CONSTITUTIONAL CASE LAW
- Supreme Court Advocates-on-Record -Association v. Union of India [2015 SC]
- Kesavananda Bharati v. State of Kerala [1973 SC]
- Ashok Kumar Thakur v. Union of India [2008 SC]
- Indra Sawhney v. Union of India [1993 SC]
- D. K. Basu v. State of W. B. [1996 SC]
- Maneka Gandhi v. Union of India [1978 SC]
Supreme Court Advocates-on-Record -Association v. Union of India
Date of Judgment: 16 October 2015
Bench Strength: 5
No. of pages: 1042
The “basic structure” of the Constitution, presently inter alia includes the supremacy of the Constitution, the republican and democratic form of Government, the “federal character” of distribution of powers, secularism, “separation of powers” between the legislature, the executive, and the judiciary, and “independence of the judiciary”. This Court, while carving out each of the above “basic features”, placed reliance on one or more Articles of the Constitution, sometimes in conjunction with the preamble.
The deduction of the concept of “independence of the judiciary” emerged from a collective reading of Articles 12, 36 and 50. It is sometimes not possible, to deduce the concerned “basic structure” from a plain reading of the provisions of the Constitution. And at times, such a deduction is made, from the all-important silences hidden within those Articles. Therefore, when a plea is advanced raising a challenge on the basis of the violation of the “basic structure” with reference to the “independence of the judiciary”, its rightful understanding is, and has to be, that Articles 12, 36 and 50 on the one hand, and Articles 124, 217 and 222 on the other, (read collectively and harmoniously) constitute the basis thereof.
Article 124A constitutes the edifice of the Constitution (99th Amendment) Act, 2014. The striking down of Article 124A would automatically lead to the undoing of the amendments made to Articles 124, 124B, 124C, 127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, that the latter Articles are sustainable only if Article 124A is upheld. Article 124A (1) provides for the constitution and the composition of the National Judicial Appointments Commission (NJAC). It is composed of the following:
- the Chief Justice of India, Chairperson, ex officio;
- two other senior Judges of Supreme Court, next to the Chief Justice of India – Members, ex officio;
- the Union Minister in charge of Law and Justice – Member, ex officio;
- two eminent persons, to be nominated – Members.
If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety.
Clauses (a) and (b) of Article 124A (1) do not provide an adequate representation to the judicial component in the NJAC. Clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary (as also transfer of Chief Justices and Judges from one High Court to another). The same are accordingly, violative of the principle of “independence of the judiciary”.
Clause (c) of Article 124A (1) is ultra vires the provisions of the Constitution because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A (1), in my view, impinges upon the principles of “independence of the judiciary”, as well as, “separation of powers”.
Clause (d) of Article 124A (1) which provides for the inclusion of two “eminent persons” as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the “basic structure” of the Constitution.
In the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A (1) are liable to be set aside. The same are accordingly struck down. In view of the striking down of Article 124A (1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside.
I have concluded, that with the setting aside of the impugned Constitution (99th Amendment) Act, 2014, the provisions of the Constitution sought to be amended thereby, would automatically revive, and the status quo ante would stand restored.
The National Judicial Appointments Commission Act, 2014 inter alia emanates from Article 124C. It has no independent existence in the absence of the NJAC, constituted under Article 124A (1). Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 is also liable to be set aside; the same is accordingly hereby struck down.
ORDER OF THE COURT
1. The prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases is rejected.
2. The Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void.
3. The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void.
4. The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the “collegium system”), is declared to be operative.
5. To consider introduction of appropriate measures, if any, for an improved working of the “collegium system”, list on 3.11.2015.
The manner in which Articles 124 and 217 were interpreted by this Court, emerges principally from three-Constitution Bench judgments of this Court, which are now under pointed consideration. The first judgment was rendered, by a seven-Judge Bench, by a majority of 4:3, in the First Judges case on 30.12.1981.
By a majority of 7:2, a nine-Judge Bench of this Court, in the Second Judges case, overruled the judgment in the First Judges case. The instant judgment was rendered on 6.10.1993. Consequent upon doubts having arisen with the Union of India, about the interpretation of the Second Judges case, the President of India, in exercise of his power under Article 143, referred nine questions to the Supreme Court, for its opinion. A nine-Judge Bench answered the reference unanimously, on 28.10.1998.
Kesavananda Bharati v. State of Kerala 
The single most important judgment in India’s Constitutional Law history is undoubtedly the 13-Judge Bench Majority Judgment in Kesavananda Bharati case delivered on 24th April 1973. No study of Constitutional Law can be complete without understanding this judgment. But it is easier said than done. Reason is simple. It is an exceptionally lengthy judgment, running in 502 printed pages.
DLA has taken pains to abridge this lengthy judgment in just about 5 pages so as to spare its students from spending their time and energy in going through its 502 pages.
We present below not only the gist of the operating part of the judgment, but also the original views of most of the judges comprising the Bench.
The Supreme Court laid down the Theory of Basic Structure in this case. It was held that some of the provisions of the Constitution of India form its basic structure, which are not amendable by Parliament by exercise of its constituent power under Article 368.
Gist of the Operating Part
In this case, the validity of 24th, 25th and 29th amendments to the Constitution of India was challenged. The main question related to the nature, extent and scope of amending power of the Parliament under the Constitution. The views of the majority were as follows:
(1) L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (which had held that fundamental rights were beyond the amending powers of Parliament) was overruled;
(2) The Constitution (Twenty-fourth Amendment) Act, 1971 (giving power to Parliament to amend any part of the Constitution) was valid;
(3) Article 368, as amended, was valid but it did not confer power on the Parliament to alter the basic structure or framework of the Constitution.
The court, however, did not spell out in any exhaustive manner as to what the basic structure/framework was except that some judges gave a few examples.
(4) The amendment of Article 31C containing the words “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was held invalid.
Original views of individual judges
S.M. Sikri C.J.
This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objectives Resolution adopted on January 22, 1947.
The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest court of the land, i.e. the Supreme Court, by appropriate proceedings for the enforcement of the rights conferred by this part, and this was guaranteed. Article 32 (2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Article 32(4) further provides that “the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution”.
The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same.
The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic forms of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
The above structure is built on the basic foundation, i. e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.
J.M. Shelat & A.N. Grover, JJ.
The Constitution is an organic document which must grow and it must take stock of the vast socio-economic problems, particularly, of improving the lot of the common man consistent with his dignity and the unity of the nation.
The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of them has to function within the four-corners of the constitutional provisions. The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence, i.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental rights and directive principles of State policy have been described as the conscience of the Constitution.
The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as to take away or abridge the fundamental rights contained in Part III. Powers of the Union and the States are further curtailed by conferring the right to enforce fundamental rights contained in Part III by moving the Supreme Court for a suitable relief, Article 32 itself has been constituted a fundamental right. Part IV containing the directive principles of State policy was inspired largely by similar provisions in the Constitution of the Eire Republic (1937). This part, according to B. N. Rao, is like an Instrument of Instructions from the ultimate sovereign, namely, the people of India.
The Constitution has all the essential elements of a federal structure as was the case in the Government of India Act, 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or the provinces.
All the Legislatures have plenary powers but these are controlled by the basic concepts of the Constitution itself and they function within the limits laid down in it. The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights. It is a written and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being Article 368.
It is the executive that has the main responsibility for formulating the governmental policy by “transmitting it into law” whenever necessary. “The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State”.
K.S. Hegde & Mukherjea, JJ.
We find it difficult to accept the contention that our Constitution-makers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals. There is no doubt as men of experience and sound political knowledge, they must have known that social, economic and political changes are bound to come with the passage of time and the Constitution must be capable of being so adjusted as to be able to respond to those new demands. Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change.
Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain ‘the Constitution’ which means the original Constitution. When we speak of the ‘abrogation’ or ‘repeal’ of the Constitution, we do not refer to any form but to substance. If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged.
A ‘flexible’ constitution is one under which every law of every description (including one relating to the constitution) can legally be changed with the same ease and in the same manner by one and the same body. A ‘rigid’ constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws.
H.R. Khanna, J.
Besides laying down the norms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document. A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful. A Constitution must therefore contain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised, is not a document for fastidious dialectics but the means of ordering the life of a people. It had (sic) its roots in the past, its continuity is reflected in the present and it is intended for the unknown future.
K.K. Mathew, J.
Every well-drawn Constitution will provide for its own amendment in such a way as to forestall as is humanly possible all revolutionary upheavals. No existing Constitution has reached its final form and shape and become, as it were, a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response, may burst forth. As Wilson said, a living Constitution must be Darwinian in structure and practice. The Constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. “A Constitution is an experiment as all life is an experiment”. If the experiment fails, there must be provision for making another.
Jefferson said that there is nothing sanctimonious about a Constitution and that nobody should regard it as the Ark of the Covenant, too sacred to be touched. Nor need we ascribe to men of preceding age, a wisdom more than human and suppose that what they did should be beyond amendment. A Constitution is not an end in itself, rather a means for ordering the life of a nation. The generation of yesterday might not know the needs of today, and, ‘if yesterday is not to paralyse today’, it seems best to permit each generation to take care of itself.
The sentiment expressed by Jefferson was echoed by Dr Ambedkar. How could he have said that what Jefferson said is “not merely true but absolutely true”, unless he subscribed to the view of Jefferson that “each generation is a distinct nation with a right, by the will of the majority to bind themselves but none ‘to bind the succeeding generations more than the inhabitants of another country”, and its corollary which follows as ‘the night the day’ that each generation should have the power to determine the structure of the Constitution under which they live.
And how could this be done unless the power of amendment is plenary, for it would be absurd to think that Dr Ambedkar contemplated a revolution in every generation for changing the Constitution to suit its needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should not limit the power of amendment of the future generation by exercising its power to amend the amending power.
Mr Palkhivala said that if the power of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow.
Ashok Kumar Thakur v. Union of India [2008 SC]
[Constitutional Validity of Reservations for OBCs for Admissions in Educational Institutions] [It is a long long judgment. Delhi Law Academy is presenting here, for its students, a concise and useful Summary of the judgment:]
Whether the Ninety-Third Amendment of the Constitution is against the “basic structure” of the Constitution?
The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the “basic structure” of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as “private unaided” educational institutions are concerned, is left open to be decided in an appropriate case.
Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires?
Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory.
Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution?
Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions.
Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution?
The Ninety-Third Amendment of the Constitution does not affect the executive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) is not required to be followed.
Whether the Act 5 of 2007 is constitutionally invalid in view of definition of “Backward Class” and whether the identification of such “Backward Class” based on “caste” is constitutionally valid?
Identification of “backward class” is not done solely based on caste. Other parameters are followed in identifying the backward class. Act 5 of 2007 is not invalid for this reason.
Whether “Creamy Layer” is to be excluded from SEBCs?
“Creamy Layer” is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of “creamy layer” such identification may not be valid under Article 15(1) of the Constitution.
What should be the parameters for determining the “creamy layer” group?
The parameters contained in the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 08.09.1993 may be applied. And the definition of “Other Backward Classes” under Section 2(g) of the Act 5 of 2007 should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after excluding the creamy layer.
Whether the “creamy layer” principle is applicable to Scheduled Tribes and Scheduled Castes?
“Creamy Layer” principle is not applicable to Scheduled Castes and Scheduled Tribes.
Whether the principles laid down by the United States Supreme Court for affirmative action such as “suspect legislation”, “strict scrutiny” and “compelling State necessity” are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution?
The principles laid down by the United States Supreme Court such as “suspect legislation”, “strict scrutiny” and “compelling State necessity” are not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution.
Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid?
The delegation of power to the Union Government to determine as to who shall be the “other backward classes” is not excessive delegation. Such delegation is constitutionally valid.
Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review is contemplated?
The Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation, but a review can be made after a period of 10 years.
What shall be the educational standard to be prescribed to find out whether any class is educationally backward?
The contention that educational standard of matriculation or (10+2) should be the benchmark to find out whether any class is educationally backward is rejected.
Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved?
27% of seats for other backward classes is not illegal and the Parliament must be deemed to have taken into consideration all relevant circumstances when fixing the 27% reservation.
“Other Backward Classes” defined in Section 2(g) of Act 5 of 2007 is to be read as “Socially and Educationally Backward Classes” other than Scheduled Castes and Scheduled Tribes, determined as ‘Other Backward Classes’ by Central Government and if such determination is with reference to caste, it shall exclude “Creamy Layer” from among such caste.
* * * * *
Indra Sawhney v. Union of India [1993 SC]
Constitutional Validity of Reservations for OBCs in Public Employment[It is a long long judgment. Delhi Law Academy is presenting here for its students a concise and useful Summary of the judgment:]
Issue 1 (a)
Whether the ‘provision’ in Article 16(4) must necessarily be made by the Parliament/Legislature?
It is not necessary that the ‘provision’ under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised.
Whether an executive order making a ‘provision’ under Article 16(4) is enforceable forthwith?
An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued.
Whether clause (4) of Article 16 is an exception to clause (1)?
Clause (4) of Article 16 is not an exception to clause (1). It is an instance and an illustration of the classification inherent in clause (1).
Whether Article 16(4) is exhaustive of the concept of reservations in favour of backward classes?
Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment.
Whether Article 16(4) is exhaustive of the very concept of reservations? Whether clause (1) of Article 16 does not permit any reservations?
Reservations can also be provided under clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for ‘backward class of citizens’ – as explained in this Judgment.
Meaning of the expression “backward class of citizens” in Article 16(4).
A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non- Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectivities for the purposes of Article 16(4).
Identification of “backward class of citizens”
Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify.
It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with occupational groups or with castes or with some other groups.
Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does –what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming minority of the population, one can well begin with it and then go to other groups, sections and classes.
Whether the backwardness in Article 16(4) should be both social and educational?
It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely intertwined in the Indian context.
‘Means-test’ and ‘creamy layer’
‘Creamy layer’ can be, and must be excluded.
Whether a class should be situated similarly to the Scheduled Castes/Scheduled Tribes for being qualified as a Backward Class?
It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes.
Adequacy of Representation in the Services under the State
The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority.
Whether backward classes can be identified only and exclusively with reference to the economic criterion?
A backward class of citizens cannot be identified only and exclusively with reference to economic criteria.
Whether a backward class can be identified on the basis of occupation-cum-income without reference to caste?
It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised.
Whether Backward Classes can be further divided into backward and more backward categories?
There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories.
To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under clause (4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?
(a) and (b) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
While applying 50% rule, if any, whether a year should be taken as a unit or whether the total strength of the cadre should be looked to?
The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be.
Whether clause (4) of Article 16 provides reservation only in the matter of initial appointments/direct recruitment or does it contemplate and provide for reservations being made in the matter of promotion as well?
Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion – be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of ‘State’ in Article 12 – such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of ‘backward class of citizens’ in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so. It would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration.
Whether Reservations are anti-meritarian?
While the rule of reservation cannot be called anti-meritarian, there are certain services and posts to which it may not be advisable to apply the rule of reservation.
Will the extent of judicial review be limited or restricted in regard to the identification of Backward Classes and the percentage of reservations made for such classes, to a demonstrably perverse identification or a demonstrably unreasonable percentage?
There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4).
Whether the distinction made in the second Memorandum between ‘poorer sections’ of the backward classes and others permissible under Article 16?
The distinction made in the impugned Office Memorandum dated September 25, 1991 between ‘poorer sections’ and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as Other Backward Classes, as explained in paras 843-844 of this Judgment.
Whether the reservation of 10% of the posts in favour of ‘other economically backward sections of the people who are not covered by any of the existing schemes of the reservations’ made by the Office Memorandum dated September 25, 1991 permissible under Article 16?
The reservation of 10% of the posts in favour of ‘other economically backward sections of the people who are not covered by any of the existing schemes of the reservation’ made in the impugned Office Memorandum dated September 25, 1991 is constitutionally invalid and is accordingly struck down.
Desirability of a Permanent Statutory Body to Examine Complaints of Over-inclusion/ Under-inclusion
The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism – in the nature of a Commission – for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of OBCs and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor.
(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservations for other classes can be provided under clause (1) of Article 16.
(2) The expression ‘backward class’ in Article 16(4) takes in ‘Other Backward Classes’, SCs, STs and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational backwardness and economic backwardness. They are mutually contributory to each other and are intertwined with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4). The weaker sections referred to in Article 46 do include SEBCs referred to in Article 340 and covered by Article 16(4).
(3) Even under Article 16(1), reservations cannot be made on the basis of economic criteria alone.
(4) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.
(5) There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification, however, it would be advisable – nay, necessary – to ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two such classes do not eat away the entire quota leaving the other backward classes high and dry.
For excluding ‘creamy layer’, an economic criterion can be adopted as measure of social advancement.
(6) A ‘provision’ under Article 16(4) can be made by an executive order. It is not necessary that it should be made by Parliament/Legislature.
(7) No special standard of judicial scrutiny can be predicated in matters arising under Article 16(4). It is not possible or necessary to say more than this under this question.
(8) Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion.
We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion – be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of ‘State’ in Article 12 –such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of ‘backward class of citizens’ in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so.
Directions to Government of India and State Governments:
(A) The Government of India, each of the State Governments and the Administrations of Union Territories shall, within four months from today, constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes of citizens. The advice tendered by such body shall ordinarily be binding upon the Government.
(B) Within four months from today the Government of India shall specify the bases, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections (‘creamy layer’) from ‘Other Backward Classes’. The implementation of the impugned O.M. dated August 13, 1990 shall be subject to exclusion of such socially advanced persons (‘creamy layer’).
This direction shall not however apply to States where the reservations in favour of backward classes are already in operation. They can continue to operate them. Such States shall however evolve the said criteria within six months from today and apply the same to exclude the socially advanced persons/sections from the designated ‘Other Backward Classes’.
(C) It is clarified and directed that any and all objections to the criteria that may be evolved by the Government of India and the State Governments in pursuance of the direction contained in clause (B) of para 861 as well as to the classification among backward classes and equitable distribution of the benefits of reservations among them that may be made in terms of and as contemplated by clause (i) of the Office Memorandum dated September 25, 1991, as explained herein, shall be preferred only before this Court and not before or in any other High Court or other Court or Tribunal. Similarly, any petition or proceeding questioning the validity, operation or implementation of the two impugned Office Memorandums, on any grounds whatsoever, shall be filed or instituted only before this Court and not before any High Court or other Court or Tribunal.
Case Law on Articles 21 and 22 of the Constitution
K. Basu v. State of W. B. [1996 SC]
The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26-8-1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in The Telegraph regarding deaths in police lock-ups and custody.
The Executive Chairman submitted that it was imperative to examine the issue in depth and to develop “custody jurisprudence” and formulate modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned.
It was requested that the letter along with the news items be treated as a writ petition under “public interest litigation” category.
Considering the importance of the issue raised in the letter, it was treated as a writ petition and notice was issued on 9-2-1987.
We consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
Case Law on Article 21 of the Constitution
Maneka Gandhi v. Union of India [1978 SC][It is a long judgment. Delhi Law Academy is presenting here for its students a concise and useful Summary of the judgment:]
The petitioner is the holder of the passport issued to her on June 1, 1976 under the Passports Act, 1967. On July 4, 1977 the petitioner received a letter dated July 2, 1977 from the Regional Passport Officer, Delhi intimating to her that it has been decided by the Government of India to impound her passport under Section 10(3)(c) of the Act in public interest and requiring her to surrender the passport within seven days from the date of receipt of the letter.
The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in Section 10(5) to which a reply was sent by the Government of India, Ministry of External Affairs on July 6, 1977 stating inter alia that the Government has decided “in the interest of the general public” not to furnish her a copy of the statement of reasons for the making of the order. The petitioner thereupon filed the present petition challenging the action of the Government in impounding her passport and declining to give reasons for doing so.
Meaning and content of personal liberty in Article 21
The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh case that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law.
Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh case was struck down as invalid.
It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means ‘enacted law’ or ‘state law’. Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable.
The inter-relationship between Articles 14, 19 and 21
We may at this stage consider the inter-relation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A.K. Gopalan case was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that “certain articles in the constitution exclusively deal with specific matters” and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article.
This doctrine of exclusivity was seriously questioned in R.C. Cooper case and it was over-ruled by a majority of the full Court. The majority judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19.
The nature and requirement of the procedure under Article 21
Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach- No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu [(1974) 2 SCR 348], namely, that “from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of-treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
How far natural justice is an essential element of ‘procedure established by law
The question immediately arises: does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the test of this requirement? Is it ‘right or fair or just’?
Now, as already pointed out, the doctrine of natural justice consists principally of two rules, namely, nemo debet esse judex in propria causa: no one shall be a judge in his own cause, and audi alteram partem: no decision shall be given against a party without affording him a reasonable hearing. We are concerned here with the second rule and hence we shall confine ourselves only to a discussion of that rule.
Attorney General urged that having regard to the nature of the action involved in impounding of a passport, the audi alteram partem rule must be held to be excluded, because if notice were to be given to the holder of passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the object of impounding the passport would be frustrated. The argument was that if the audi alteram partem rule were applied, its effect would be to stultify the power of impounding the passport and it would defeat and paralyse administration of the law and hence the audi alteram partem rule cannot in fairness be applied while exercising the power to impound a passport.
The audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands.
It would not therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport.
A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure ‘established’ by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article.
Is Section 10(3)(c) violative of Article 14?
That takes us to the next question whether Section 10(3)(c) is violative of any of the fundamental rights guaranteed under Part III of the Constitution. Only two articles are relied upon for this purpose and they are Articles 14 and 19(l)(a) and (g).
Now, the law is well settled that when a statute vests unguided and unrestricted power in an authority to affect the rights of a person without laying down any policy or principle which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination since it would leave it open to the authority to discriminate between persons and things similarly situated. But here it is difficult to say that the discretion conferred on the Passport Authority is arbitrary or unfettered.
There are four grounds set out in Section 10(3)(c) which would justify the making of an order impounding a passport. We are concerned only with the last ground denoted by the words “in the interests of the general public”, for that is the ground which is attacked as vague and indefinite. We fail to see how this ground can, by any stretch of argument, be characterised as vague or undefined.
The words “in the interests of the general public” have a clearly well defined meaning and the courts have often been called upon to decide whether a particular action is “in the interests of the general public” or in “public interest”. These words are in fact borrowed ipsissima verba from Article 19(5) and we think it would be nothing short of heresy to accuse the constitution-makers of vague and loose thinking.
The legislature performed a scissors and paste operation in lifting these words out of Article 19(5) and introducing them in Section 10(3)(c) and if these words are not vague and indefinite in Article 19(5), it is difficult to see how they can be condemned to be such when they occur in Section 10(3)(c). How can Section 10(3)(c) be said to incur any constitutional infirmity on account of these words when they are no wider than the constitutional provision in Article 19(5)?
Sufficient guidelines are provided by the words “in the interests of the general public” and the power conferred on the Passport Authority to impound a passport cannot be said to be unguided or unfettered. Moreover, it must be remembered that the exercise of this power is not made dependent on the subjective opinion of the Passport Authority as regards the necessity of exercising it on one or more of the grounds stated in the section, but the Passport Authority is required to record in writing a brief statement of reasons for impounding the passport and, save in certain exceptional circumstances, to supply a copy of such statement to the person affected, so that the person concerned can challenge the decision of the Passport Authority in appeal and the appellate authority can examine whether the reasons given by the Passport Authority are correct, and if so, whether they justify the making of the order impounding the passport. It is true that when the order impounding a passport is made by the Central Government, there is no appeal against it, but in such a case the power is exercised by the Central Government itself and it can safely be assumed that it will exercise the power in a reasonable and responsible manner.
When power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the Court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under Section 10(3)(c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Article 14. But every exercise of such power has to be tested in order to determine whether it is arbitrary or within the guidelines provided in Section 10(3)(c).