This article is a round-up of all the Constitution Bench judgments delivered in the year 2024 inclusive of all the judgments that showcased consideration, interpretation and evolution of important principles of constitution law. This is Part — I of III compendium comprising 4 judgments out of the total 13 Constitution Bench judgments rendered in 2024.
The judgments are as follows:
(1) Sita Soren v. Union of India1
(Delivered on 4-3-2024) Supreme Court of India (SC)
Coram: 7-Judge Bench of Justices Dr D.Y. Chandrachud, C.J. and A.S. Bopanna, M.M. Sundresh, P.S. Narasimha, J.B. Pardiwala, Sanjay Kumar and Manoj Misra, JJ.
Authored by: Dr Justice D.Y. Chandrachud
Issue under reference before the (Constitution Bench)
The Constitution Bench dwelled upon the interpretation of Articles 1052/1943 of the Constitution of India; whether the protection contained thereunder in the form of parliamentary privileges is available when the State Legislature /parliamentarian receives a bribe to cast a vote in a certain direction or speak about certain issues. Whether the mere conduct of receiving the bribe from any third party for influencing the free exercise of vote, expression or participation would be protected by parliamentary privileges enshrined under Articles 105/194 for the parliamentarian or State Legislature respectively.
Background of the reference to the Constitution Bench
The present criminal appeal arose from the judgment of Jharkhand High Court (HC), with the appellant belonging to political party Jharkhand Mukti Morcha (JMM) was accused of accepting bribe from an independent category candidate for casting his vote in his favour. However, eventually the vote was not cast in favour of the alleged bribe giver, whilst balloting for Rajya Sabha seat and instead she cast her vote in favour of a candidate belonging to her own party. Accordingly, criminal prosecution was kicked in, which was assailed before the High Court. The High Court however relied upon the reasoning of the SC’s earlier decision in P.V. Narasimha Rao judgment4, declined to quash the proceedings on the grounds that the appellant was not protected because she did not cast her vote in favour of the candidate bribing her.
The matter travelled from the two-Judge Bench to seven-Judge Bench when it reached the SC, when the Benches were of the view that “in light of wide ramifications” of the questions of law arising in the special leave petition (SLP), the doubts raised and various issues of public importance, it should be heard by a seven-Judge Bench. The Benches doubted and disagreed with the view laid down in the earlier P.V. Narasimha Rao judgment5 and recommended for its reconsideration by a larger Bench.
The fundamental premise on which such a reference came to be made to the seven-Judge Bench judgment was that both the Articles 105(2)/194(2) does not provide immunity from launch of criminal prosecution for violation of an ordinary criminal law, which may arise independently of the exercise of rights and duties as a Member of Parliament (MP) or a Member of the Legislative Assembly. The judgment of P.V. Narasimha Rao case6 led to an anomalous situation where a bribe is accepted by Member of Parliament /Minister of the Legislative Assembly for speaking or giving their vote in Parliament and thereafter in fact if he speaks or gives vote in Parliament in that manner for which the bribe was offered, for which the immunity would attach. However, to the contrary, no immunity would attach, when Minister of the Legislative Assembly /Member of Parliament accept the bribe, but do not give their vote or speak in the manner accepted by the bribe giver. This anomalous situation arose because of incorrect interpretation of phrase “in respect of” under both the articles and can be protected only if concluded to be “arising out of”. The dissenting opinion/judgment of Justice S.C. Agrawal was relied upon by all the Benches for observing in the right direction the correct interpretation of Articles 105/194, which should be accepted as the correct and appropriate interpretation of Articles 105/194.
Facts and overview of P.V. Narasimha Rao judgment
Complaint was filed before the Central Bureau of Investigation (CBI) alleging that certain Members of Parliament of JMM and Janata Dal (Secular) JD(S) conspired after receiving bribes to vote against the no confidence motion, and to defeat the same bribes were given for defeating the no confidence motion. The matter reached up to the 5-Judge Constitution Bench of SC when two major questions arose for consideration:
(i) Firstly, whether by virtue of Article 105 of the Constitution, an Member of Parliament can claim immunity from prosecution on a charge of bribery in a criminal court.
(ii) Secondly, whether an Member of Parliament falls within the purview of the Prevention of Corruption Act, 19887 and which is the competent authority for granting sanction for prosecution under the Prevention of Corruption Act, 1988.
Three opinions were authored by the Constitution Bench in P.V. Narasimha Rao judgment8 ― by S.C. Agrawal, J., (for himself and Dr A.S. Anand, J.), S.P. Bharucha, J., (for himself and S. Rajendra Babu, J.,) and an opinion by G.N. Ray, J., The majority held broadly as follows:
(A) Immunity is attached even to the bribe taker who cast their vote against the no confidence motion protecting them from prosecution in any court of law under Article 105(2) of the Constitution of India.
(B) The Member of Parliament who abstained from voting after receiving the bribe however would not enjoy any immunity and were liable for criminal prosecution, since they did not exercise their “right to vote”.
(C) The expression “in respect of” must receive a broad meaning and entails that an Member of Parliament is protected from any proceedings in a court of law for his any conduct relating to, concerning or having any nexus, whatsoever with the vote given in the Parliament by the said Member of Parliament.
However, the immunity under Article 105(2) extends only to the Member of Parliament concerned, and not to those who conspired with the Member of Parliament in the commission of the offence, and participated in offence of bribery. Bribe givers therefore were held to be liable for being prosecuted, being outside the protection of Article 105(2).
The minority opinion by Justice S.C. Agrawal however on the other hand-held as follows:
(A) Object of immunity under Article 105(2) is to ensure independence of legislatures for the healthy functioning of parliamentary democracy and it cannot be interpreted in any manner that places the Member of Parliament concerned above the clutches of law and makes the conduct repugnant to the healthy functioning of the parliamentary democracy.
(B) Expression “in respect of” precedes the words “anything said or any vote given” in Article 105(2) and the interpretation accorded by the majority was never so intended by the farmers of the Constitution, especially the distinction between the Members of Parliament voting after receiving the bribe and Members of Parliament not voting after receiving the same.
(C) The phrase “in respect of” must be interpreted to mean “arising out of” and the immunity available is only towards protection against liability for an act that follows and succeeds as a consequence of making the speech or giving of vote by the Member of Parliament. It cannot be attached for an act that precedes (not succeeds or follows) the speech or vote and gives rise to criminal liability independently of the speech or vote.
(D) Mere act of acceptance of bribe for giving a vote or speaking in the Parliament, which arises independently of the making of speech and the conspiracy per se is an offence, which is concluded with the acceptance of bribe constituting ingredients of offence under the Prevention of Corruption Act, 1988. Thus, it was held by the minority that liability for the offence cannot be treated as “in respect of” anything said or any vote given in Parliament.
Reconsideration of P.V. Narasimha Rao judgment does not violate the principles of stare decisis
A preliminary argument was taken by the petitioners that the long-settled view in P.V. Narasimha Rao judgment9 cannot be overruled and that courts are generally reluctant in overturning judicial precedents holding the field for lengthier passages of time. The Court however rebutted this preliminary argument by adopting the following reasoning:
(A) Referring to various judgments, especially of Kalpana Mehta v. Union of India10, Raja Ram Pal v. Lok Sabha11, Kuldip Nayar v. Union of India12, Amarinder Singh v. Punjab Vidhan Sabha13, and some others, it was held that doubts about the correctness of the decision in P.V. Narasimha Rao judgment14 had been raised from time to time on previous occasions and various decisions. So much so that in Kalpana Mehta case15 it was observed that whenever it becomes necessary in an appropriate case in future, a larger Bench may have to consider the issue as settled in P.V. Narasimha Rao judgment16.
(B) The present proceedings before the Constitution Bench with the issues at large provides the correct occasion for the court to settle the law once and for all and the ability of the SC to reconsider its decision is necessary for the organic development of the Constitution of India and for the advancement of justice.
(C) Referring to the judgment of Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay17, Court held that a balance is always necessary to be maintained between the need of certainty, continuity, desirability on one hand and development of law on the other, when it comes to constitutional interpretations. The Court cannot be denied of its power to reconsider its decision, lest the development of constitutional jurisprudence would virtually come to a standstill.
(D) Referring to the 7-Judge Constitution Bench judgment in Bengal Immunity Co. Ltd. v. State of Bihar18, the powers of the Court to reconsider its previous decisions in view of the doctrine of stare decisis were discussed and laid down in length. The primary test for overruling any earlier judgment being the duty of the Court to consider the “baneful effect” of the previous decisions on the “general interests of the public”.
(E) The doctrine of stare decisis is not a flexible rule of law, authorising the perpetuating of an error to the detriment of the general welfare or against the public interest.
Accordingly, the Court held that P.V. Narasimha Rao judgment19 had wide ramification on public interest, probity in public life and functioning of a parliamentary democracy. The majority judgment comprised several apparent errors, that resulted in a paradoxical outcome and thus reconsideration was necessary.
History and purport of parliamentary privileges in India
A deliberative democracy contemplates deliberations as an ethic of good governance and is not restricted to the parliamentary sphere alone. The freedom of elected legislatures to freely discuss and debate matters of the moment on the floor of House is a key component of deliberative democracy in a parliamentary form of Government and is premised on the necessity to secure the institutional foundation of the Parliament and the State Legislatures as key components of the dialogue, debate and critique which sustains democracy.
Referring to the pre-independence enactments in India, especially the Council Act, 1861, it was held that there were limitations on existence of the privilege for the members of the Indian Councils and there was a marked difference between the freedom of speech effectively enjoyed by the official members and nominated Indian members. The Government of India Act, 1909, marked a significant shift in evolution of privileges in the Council followed by the Government of India Act, 191920, whereunder vide Section 24(7), a qualified privilege for freedom of speech to the Houses of Legislature was accorded, accompanied with the immunity attached to that qualified privilege. This was followed by the Government of India Act, 193521, whereunder the privileges continued and were widened further by virtue of Section 28 (w.r.t. Federal Legislature) and Section 71(1) (w.r.t. Provincial Legislatures).
After analysing the history of evolution of parliamentary privileges from 1861 to 1935 from the Act of 1861 to the Government of India Act of 1935, the Court concluded that the parliamentary privileges never conferred “blanket immunity from criminal law”. It was always tethered to the relationship, which it bore to the functions which the Indian legislatures sought to discharge. Referring to the Constituent Assembly Debates, the Court held that even the Constituent Assembly treated the privileges as not being unfettered and absolute, but was just a statutory grant made by successive enactments.
Analysing the scheme of Articles 105/194, Court held that freedom/privilege provided thereunder is subject to the rules and standing orders regulating the procedure in Parliament, so framed under Article 11822. Referring to the judgment of Alagaapuram R. Mohanraj v. T.N. Legislative Assembly23, the Court carved out the distinction between Article 19(1)(a)24 on the one hand and Articles 105/194 on the other hand. Where on one hand freedom of speech and expression under Article 19(1)(a) is subjected to reasonable restrictions under Article 19(2), the freedom provided under Article 105 is not subject to any such limitations and restrictions. Referring to the judgment of Tej Kiran Jain v. N. Sanjiva Reddy25, it was held that the immunity under Article 105 is of the widest importance and the word “anything” is equivalent to “everything”. The privilege embodies the fundamental value that the free and fearless exposition of critique in Parliament is the essence of democracy.
However, it was held that the privileges conferred by Articles 105 and 194 are not “ancient and undoubted” as available with the House of Commons in United Kingdom (UK), but they are existential and available within the confines of the Constitution of India. Therefore, the House (legislature) is not the sole Judge to decide its own privilege. Referring to the judgments of Pandit M.S.M. Sharma v. Sri Krishna Sinha26 and Powers, Privileges and Immunities of State Legislatures, In re27, the Court held that Parliament or State Legislature are not the sole Judge of their privileges and courts have the power to enquire whether the particular privilege claims by the legislatures in fact existed or not by referring, consulting and falling back upon the privileges of the House of Commons. Referring to the judgment of State of Karnataka v. Union of India28, Raja Ram Pal case29, Amarinder Singh case30, Court held that whenever a question arises whether the House has jurisdiction over a matter under its privileges, the adjudication of such a claim under the Constitution of India is vested exclusively in the courts. Parliament or legislature may claim only those privileges that are essential and necessary for the overall functioning of the House.
Parliamentary privileges as a collective right of the House and the availability of “necessity test” to claim such a “privilege”
Parliamentary privileges are divided into two constituent elements, which are:
(A) Some of rights enjoyed by the House of Parliament/legislature collectively: Power to regulate its own procedure, punish for contempt of the House or to expel a member from the House belongs to this element of privileges held by the House as a collective body.
(B) The rights enjoyed by the members of the House individually: Rights exercised individually by members of the House, viz. freedom of speech, freedom from arrest, absolute discretion to vote are the rights individually of the legislators.
Insofar as the second element of privileges available individually to the members are concerned, they are always qualified by “necessity”, in as much that privilege must be such without which it is impossible for the legislators to discharge their functions. Therefore, they are never absolute or unqualified and extend only insofar as it aids the House to function and without which the House may not be able to carry out its functions collectively as per the constitutional spirit. The privileges therefore are not an end in themselves. Thus, by a necessary corollary, the legislators cannot claim any privilege or immunity unconnected with the working of the entire House or efficient functioning of the Parliament/State Legislature.
Referring to the 7-Judge Constitution Bench judgment of State of Karnataka v. Union of India31, the Court held that the Constitution of India allows exercise of only those powers, privileges and immunities that are essential and necessary to the functioning of the House or a Committee thereof. There cannot be unchecked, unbridled exemption or privilege unconnected to the functioning of the Parliament or legislature, especially from application of the ordinary laws. Referring further to the judgment of Lokayukta v. State of M.P.32, expounding the “necessity test”, it was held that the scope of a privilege enjoyed by a House or its members individually must be tested and scrutinised on the basis of its necessity and that legislators cannot claim its blanket exemption from application of ordinary criminal laws under the garb of constitutional privileges.
It was thus held that the “necessity test” has struck deep roots in the Indian context and was consistently recognised by the SC. Burden of satisfying that the privilege exists and that it is necessary for the House to collectively discharge its functions lies upon the person or the body claiming the privilege and seeking immunity on the basis thereof. The Court evolved twofold tests as ingredients of the “necessity test” ― First, the privilege claimed has to be tethered to the collective functioning of the House, and second, its necessity must bear a functional relationship to the discharge of the essential duties of a legislator.
Conduct of bribery not protected by any parliamentary privileges
The Court held that constitutional provision and specific words contained thereunder must always be interpreted contextually and the word “any” can have varied meanings depending upon the context in which it appears and to be understood as “every”, if the context so desires. Referring to the judgments of State of Kerala v. K. Ajith33, and Lokayukta v. State of M.P.34, it was held that privileges are not a gateway to claim exemption from general application of ordinary laws and that commission of criminal offences within the House vests in ordinary criminal courts and not in the Parliament/legislatures. Initiation of criminal proceedings for corruption may not amount to breach of privilege, nor an individual can claim privilege against liabilities fastened on commission of a prohibited act.
The words “in respect of” under Article 105 applies to the phrase “anything said or any vote given” has to be given the widest meaning and it connotes that actions or speech or voting inside the House or Committee are absolutely protected from interference by the courts. The words “in respect of” means arising out of or bearing a clear nexus/relation to and cannot be interpreted so over broadly to mean anything which may have even a remotest connection with speech or vote given. On this issue therefore the majority overruled P.V. Narasimha Rao judgment35.
The phrase “in respect of” must have a meaning consistent with the purpose of the privileges and immunities and the constitutional intent. Corruption and bribery of the members of the legislators erode the foundation of Indian parliamentary democracy and are destructive of the aspirational and deliberative ideals of the Constitution. Therefore, the phrase “in respect of” must be understood as “arising out of” and that a bribe taken by a member of the House cannot be deemed as arising out of his vote, but a conduct completely independent of the act of voting.
Referring to the Constitution Bench judgment of Kihoto Hollohan v. Zachillhu36, it was held that freedom of speech or privileges of a legislator are not an absolute freedom and cannot justify the politically sinful or unprincipled act of floor-crossing.
The Court further held that the issue of bribery is not one of exclusivity or jurisdiction by the House over its bribe taking/bribe giving members. A criminal trial differs from contempt of the House, being dressed with procedural safeguards, rules of evidence and principles of natural justice. A member engaging in bribery commits a crime completely unrelated to their ability to vote or to make a decision on their vote and therefore receiving illegal gratification cannot be treated as “in respect of” the sanguine function of the legislator to speak or vote in the House. Prosecution for bribery is not excluded from the jurisdiction of the criminal court merely because it may also be treated by the House as contempt or a breach of its privilege.
It was further held that delivery of results is completely irrelevant to the offence of bribery and the results cannot determine the nature of offence. The offence is complete with the acceptance of the money or on the agreement/conspiracy to accept the money, that concludes it and is not at all dependent on the subsequent performance of the illegal promise by the receiver of the said illegal gratification. Referring to Section 7 of the Prevention of Corruption Act, 198837, Court held that mere obtaining, accepting or attempting to obtain an undue advantage with the intention to act or forebear from acting in a certain way is sufficient to complete the offence and it is not necessary that an act for which the bribe is given to be actually performed or results be produced. Referring to the judgments of Chaturdas Bhagwandas Patel v. State of Gujarat38 and Neeraj Dutta v. State (NCT of Delhi)39, the Court held that actual doing or forbearing to do the official act is not a constituent part of the offence of bribery. The offence is thus independent of the vote or speech protected under Articles 105(2)/194(2) and the limit of parliamentary privileges is intricately linked to the vote or speech and the transaction of parliamentary business.
International position on bribery vis-à-vis parliamentary Privileges
The Court also discussed the evolution and position of the law internationally on parliamentary privileges qua the issue of bribes received by the legislators/parliamentarians. Laws in various jurisdictions were accordingly discussed as follows:
(A) United Kingdom: Courts in the UK have interpreted narrow scope for the nexus required for non-legislative activities to be immune, especially when allegations for taking/offering bribes are involved. The immunity has been declined by the courts exercising jurisdiction over such conduct treating it as a non-legislative activity. Referring to the judgment of R. v. Greenway40, wherein a parliamentarian was accused of accepting a bribe for helping the interest of a company, it was held by the Court relying on the Lord Salmon’s Report of 1976, titled as “The Royal Commission on Standards of Conduct in Public Life”, that cases of corruption cannot be immune from criminal prosecution. Eventually the Bribery Act of 2010 came to be enacted which covers instances of parliamentarians engaging in corruption. Especially after P.V. Narasimha Rao judgment41, UK Courts have narrowly interpreted immunity under Article 9 as available to the legislators. In R. v. Chaytor42, Court relying on the reasoning of R. v. Greenway43, held that the nexus between a bribe and a speech made in Parliament does not oust the jurisdiction of criminal courts and thus not protected from prosecution. Accordingly, after referring to the wide spectrum of legislative enactments and judicial pronouncements by the SC that courts in UK have provided a narrow scope for the nexus required for non-legislative activities to be immune.
(B) United States of America (USA): Parliamentary privileges in the USA emanates from Section 6 of Article 1 of the Constitution44, influenced by Article IX of the English Bill of Rights, 1968. Members of Congress are liable under criminal statute of general application, except for their legislative and official acts as the legislative member. The Supreme Court of the United States in United States v. Daniel B. Brewster45, in the backdrop of allegations against the Senator accused of accepting a bribe held that the shield of immunity does not extend beyond what is necessary to preserve the integrity of the legislative process. Thus “necessity test” has been evolved and followed consistently by the Supreme Court of the United States in various judgments. The speech or debate clause, as aforementioned (Section 6 of Article 1) has been held not to prohibit inquiry into illegal conduct simply because it has some remote nexus to legislative functions. In Mike Gravel v. United States46, the Supreme Court of the United States reiterating the “necessity test” held that speech or debate in either House must be an integral part of the deliberative and communicative processes by which members participate in the Committee and House proceedings. Courts have extended the privilege/immunity to matters beyond pure speech or debate in either House but only when necessary to prevent indirect impairment of such deliberations. Only acts which are essential to the deliberations of the House or in discharge of the functions vested under the US Constitution are immune from prosecution before a court of law. Similar view was reiterated by the Supreme Court of the United States in United States v. Henry Helstoski47 and Ronald R. Hutchinson v. William Proxmire48, wherein the Court held that the intention of the speech and debate clause was not to create an absolute privilege in favour of Members of Congress. There is no intention anywhere evinced in the US Constitution to create an absolute privilege from liability of suit for defamatory statements made outside the chambers.
(C) Canada: On the same lines as the UK and US, courts in Canada have held the legislators liable for being prosecuted for bribery in connection with their legislative activities, the same being treated as a criminal offence. The Canadian SC also adopted the “necessity test” as discussed aforementioned, in respect of which reference was made to the decisions in Canada (House of Commons) v. Satnam Vaid49 and Jacques Chagnon v. Syndicat De La Fonction Publique Et Parapublique Du Québec50.
(D) Australia: The position of law in Australia was discussed to be consistent since 1875. Reference was made to the judgment of the SC of New South Wales in R. v. White51, wherein it was held that a legislator who suffers his vote to be influenced by a bribe defeats the very utility of representative institutions at their foundations. This was followed by judgment of the High Court of Australia in R. v. Boston52 and thus consistently the Australian Courts have held that no law prohibited the courts from determining matters that do not constitute proceedings in Parliament.
Elections to the Rajya Sabha are within the ken of Article 194
The Court lastly dealt with the argument of learned Attorney General (AG) that polling for Rajya Sabha elections is not part of the proceedings of the House like a no confidence motion, since the same was held outside the precincts of the House in the lobby. It was argued that such an election does not form part of the legislative proceedings regardless of the geographical location of the election. The Court repelled the said contention, referring to Article 80 of the Constitution of India53, holding that power to vote for electing members to the Rajya Sabha, is solely entrusted to the elected members of the Legislative Assemblies of the States, integrally related to their powers and responsibilities as legislators. The conscious use of the term “legislature” instead of the “House of legislature” in Constitution of India at various places shows that both the terms have not been used interchangeably. Outlining the deliberate difference in the usage of the phrase “in the legislature”, instead of “House of legislature”, it was stated that elections remain a part of the functioning of the legislator and take place within the precincts of the legislative assembly. The vote given for such elections is sufficient to invoke the protection of Articles 105(2)/194(2), and the parliamentary privileges is equally attracted to the words spoken and voted for elections to the Rajya Sabha as also elections for the President and Vice-President as well. There is no dispute with the proposition that elections to the Rajya Sabha are not part of the law-making function or do not take place during sitting of the House. For the aforesaid reasons, therefore it was held that parliamentary privileges is not restricted to only law making on the floor of the House, but extends to other powers and responsibilities of the elected members, taking place in the legislature of Parliament, even when the House is not sitting.
Thus, the Court returned the following conclusions whilst overruling P.V. Narasimha Rao judgment54:
(A) The doctrine of stare decisis is not an inflexible rule of law and the majority of P.V. Narasimha Rao judgment55 granting blanket immunity is a grave danger to the whole polity and it is the Court’s duty to ensure that error is not perpetuated.
(B) India does not have “ancient and undoubted” privileges as is the case of UK. It is a “constitutional privilege”, preceded by “statutory privilege” and thus always amenable to judicial review within the parameters laid down by the Constitution of India.
(C) No parliamentary privileges can be claimed or immunity attached from prosecution on a charge of bribery. Any claim to immunity must fulfill the “necessity test” as aforementioned.
(D) The expressions “anything” and “any” must be read in the context of the accompanying expressions in Articles 105(2)/194(2) and that the words “in respect of” means “arising out of” or “bearing a clear relation to” the speech or vote given.
(E) The jurisdiction exercised by the competent criminal court to try the offence of bribery against any legislator exists in an entirely distinct sphere from the authority of the House to take action for the breach of discipline and both are different.
(F) The interpretation placed upon Articles 105/194 by the SC previously in P.V. Narasimha Rao judgment56 is erroneous and is overruled.
Accordingly, the Constitution Bench answered the question of law referred to it.
* * *
(2) High Court Bar Assn. v. State of U.P.57
(Delivered on 29-2-2024) Supreme Court of India (SC)
Coram: 5-Judge Bench of HM Justices Dr D.Y. Chandrachud, C.J. and Abhay S. Oka, J.B. Pardiwala, Pankaj Mithal and Manoj Misra, JJ.
Authored by: HM Justice Abhay S. Oka
Factual background of the reference to the Constitution Bench
The Bench of three-Judges of the SC referred the matter to the Constitution Bench for reconsideration of the earlier decision of the SC in Asian Resurfacing judgment58.
In Asian Resurfacing judgment59 a Bench of two-Judges in the context of order of stay of trial proceedings passed by the High Court issued certain directions for expeditious disposal of civil and criminal cases by the High Courts as well as the trial courts. It was directed vide paras 30 and 31 that wherever stay order is passed, especially in the Prevention of Corruption Act, 1988 trial case, the proceedings should not be adjourned and concluded within 2-3 months. Vide paras 36 and 37 it was further directed that such a stay order shall be operational only for a period of 6 months unless in an exceptional case against by a speaking order such stay is extended. It was further directed that such a stay shall automatically stand vacated on expiry of 6 months.
In the order of reference to larger Bench for reconsideration of Asian Resurfacing judgment60, two questions were accordingly framed to be decided by the larger Bench, which were as follows:
(a) Whether the SC in exercise of its jurisdiction under Article 142 of the Constitution of India61, can order automatic vacation of all interim orders of the High Courts of saying proceedings of civil and criminal cases on the expiry of a certain period?
(b) Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, can direct the High Courts to decide pending cases in which interim orders of stay of proceedings have been granted on a day-to-day basis and within a fixed period?
Analysis of contentions as well as various issues by the Constitution Bench
The various directions in Asian Resurfacing judgment62 were issued in exercise of power under Article 142 of the Constitution of India. The Court firstly analysed the very object of passing the interim orders by any constitutional or civil court, holding that an interim order is always in the aid and assistance for the final relief sought for in the case. Whenever the High Court passes an interim order of stay, three factors are to be considered judicially, viz. prima facie case, irreparable loss, and balance of convenience. Interim order is necessitated, lest the final relief may become infructuous. The occasion for passing an interim order/stay of proceedings arises because the High Court is not in a position to take up the case of final hearing immediately due to the overwhelming backlog of cases.
The Court further held that High Court has inherent power to vacate and modify the order of interim relief passed after hearing the parties on various grounds, especially when one of the party intends to delay or procrastinate the proceedings or the High Court finds that there is material change in the circumstances requiring modification of the interim order passed earlier.
The Court also examined contingencies when an interim order comes to an end automatically only due to the lapse of time, to which elementary principles of natural justice are attached mandating that any modification or vacation of interim order can take place only after hearing all the affected/necessary parties. Therefore, without application of mind any interim order/stay cannot be vacated only on the ground of lapse of time when the litigant is not responsible for the delay. Delay may be attributable to institutional reasons of the High Court of not being able to handle the burden of hearing of all the cases owing to large pendency. Accordingly, the maxim “actus curiae neminem gravabit” will apply in such situations.
Referring to the judgment of CIT v. Pepsi Foods Ltd.63, wherein a similar provision was introduced under Section 254(2-A) of the IT Act64 providing for automatic vacation of stay granted by Income Tax Appellate Tribunal (ITAT), the amending provisions were held to be arbitrary and violative of Article 14 of the Constitution of India65. Such provisions of automatic vacation of interim orders are inherently arbitrary, treating unequals as equals without any differentiation being made between the litigants who are responsible for delaying the proceedings and litigants who are not so responsible. By such unequal treatment of equals, therefore such provisions or stipulations became inherently unreasonable and vitiated of Article 14. Accordingly, the Court held when the legislature is not permitted to come out with such provisions of which automatic vacation of stay, on the grounds of manifest arbitrariness, the courts in exercise of judicial powers are all the more restricted from passing judicial orders which may have the same effect.
Scope of exercise of powers under Article 142 of the Constitution of India
Holding that, the provisions of Article 142 of the Constitution of India are designed to confer jurisdiction on the Court for doing complete justice, it was held that question regarding duration of interim orders passed by the High Court in various other proceedings never specifically arose for reconsideration in Asian Resurfacing judgment. Article 142 was held not to be resorted to for issuing judicial orders for defeating justice, or passing blanket orders setting at naught innumerably large numbers of interim orders lawfully passed by the High Courts, that too without hearing the contesting parties. Referring to the judgment of Supreme Court Bar Assn. v. Union of India, it was held that plenary powers under Article 142 are inherent in the Court and complementary to those powers which are specifically conferred on the Court by various statutes, though are not limited by those statutes. Article 142 was held to be curative in nature and not authorising the Court to ignore the substantive rights of the litigant whilst dealing with the cause pending before it or to supplant substantive law applicable to the case or cause. Clearly Article 142 cannot therefore be exercised to nullify the benefits derived by a large number of litigants based on judicial orders validly passed by the High Courts.
Position of the High Court’s under Constitution of India and its power of superintendence
The SC further held that High Courts are constitutional courts and not judicially subordinate to the SC in the constitutional setup and hierarchy of the country. Referring to the judgment of Tirupati Balaji Developers (P) Ltd. v. State of Bihar66, it was held that the SC and the High Courts, both are courts of record and the latter exercising the power of superintendence under Article 227 of the Constitution of India67 over all the subordinate tribunals. The High Court has larger jurisdiction, but the SC always remains the elder brother and thus the High Court is constitutionally independent of the SC. Referring to the judgment of L. Chandra Kumar v. Union of India68, it was held that through blanket directions issued in exercise of power under Article 142, therefore the SC could not have interfered with the plenary jurisdictions conferred and available with the High Courts of granting interim relief by limiting its jurisdiction to pass interim orders valid only for 6 months at a time. Such blanket judicial orders leave a dent on the jurisdiction of the High Courts, which is also otherwise part of the basic structure of the Constitution of India.
The Court further held that in Asian Resurfacing judgment69, there was no lis before the SC pertaining to duration of operation of interim orders/stay granted in different categories of cases pending before the various High Courts. Thus, the Court delved into the issue which never arose for its consideration. Referring to its own Constitution Bench judgment in Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.70, it was held that problems and issues that do not arise by way of proper lis between the parties, should not be delved into by the SC or any opinion expressed in relation thereto generically through in rem directions.
Interpreting Article 226(3) of the Constitution of India71, it was held that the provisions therein are directory, and applicable only when interim relief is granted without furnishing a copy of the writ petition to the opposite party without hearing the opposite party. Therefore, Clause 3 will not apply when an interim order is passed after service of copy of writ petitions to all the parties concerned and after giving them opportunity of being heard, but applies only to ex parte ad interim orders passed without hearing the other side.
Referring to the judgment of Abdul Rehman Antulay v. R.S. Nayak72, it was held that time and again Constitution Benches of the SC have refrained from fixing timelines for the disposal of cases by High Courts or the Lower Courts. It has been held neither advisable nor feasible to draw or prescribe any outer time-limit for conclusion of criminal proceedings as it leads to violations of fundamental rights of the litigants contesting their matters before the Court. Such a power is permissible to be exercised only by the legislature, but not by the SC, lest it would virtually amount to judicial legislation. There are many statutes which incorporate such provisions of time-bound disposal of cases, but all such provisions have usually been held to be directory.
Directions regarding passing of interim orders/stay of proceedings by the High Courts and conclusion
It was accordingly held that the High Court should normally grant ad interim relief for a limited duration and thereafter must necessarily give priority to the hearing for vacation/modification of the interim relief, wherever the same has been granted, or such applications for vacating of the ad interim relief granted by it.
Accordingly, the Constitution Bench overruled the directions issued in the judgment of Asian Resurfacing judgment73, answering the reference accordingly.
Concurring Opinion by Mr Justice Pankaj Mithal
The Concurring Opinion of Justice Pankaj Mittal held that wherever statutes have laid down a time-limit for deciding any particular nature of proceeding, it has always been held to be a directory in nature, rather than mandatory. The position remains the same qua Article 226(3) of the Constitution of India. Filing of an application for vacating the stay order is a sine qua non for triggering automatic application of stay, if such an application is not decided within a time period of two weeks. The Concurring Opinion observed “sometimes in quest of justice we end up doing injustice”, of which Asian Resurfacing judgment74 is a clear example. It was thus held that in the interests of justice a reasoned stay order once granted in any civil or criminal court proceedings would remain operational till the decision of the main matter or until or unless the application is moved for its vacation/modification. Once speaking order is passed, it should not be lightly tinkered thereupon either extending, modifying, varied or vacating the interim order granted earlier.
The reference was accordingly answered by the Constitution Bench with the aforesaid observations and directions.
* * *
(3) Assn. for Democratic Reforms v. Union of India75
(Delivered on 15-2-2024) Supreme Court of India (SC)
(Electoral Bonds judgment)
Coram: 5-Judge Bench of Justices Dr D.Y. Chandrachud, C.J.I, Sanjiv Khanna, Manoj Misra, B.R. Gavai, and J.B. Pardiwala
Majority judgment authored by: Dr Justice D.Y. Chandrachud
All about electoral bonds and Electoral Bond Scheme of 2018
Electoral bond (EB) is a bond issued in the nature of a promissory note, akin to bearer banking instrument, not carrying the name of the buyer. Clause 2(a) of the Electoral Bond Scheme, 2018 (EBS), defines electoral bond vide Clause 2(a), which when read with Clause 11 stipulated that payments for the issuance of bond are accepted in Indian rupees, through demand draft, through cheque, electronic clearing system, or direct debit to the buyer’s account. They are generally issued in the denominations of Rs 1000, 10,000, 1,00,000, 10,00,000, and 1,00,00,000. It possesses a validity of 15 days, within which it is supposed to be in cash, failing which the authorised bank is obligated to deposit the same with the Prime Minister’s Relief Fund.
The EBS was framed by the Ministry of Finance in January 2018 in exercise of powers conferred under Section 31(3) of the Reserve Bank of India (RBI) Act. Salient features of the EBS introduced in 2018 were as follows:
(a) EB may be purchased by any person and can be encashed only by an eligible political party, entitled to receive an electoral bond, registered under Section 29-A of the Representation of the People Act, 195176 (RP Act) and meet other conditions therein.
(b) EB issued under the scheme is non-refundable vide Clause 7(6) and the information furnished by the buyer is to be treated as confidential by the authorised bank, to be disclosed only when demanded by competent court or upon a registration of a criminal case by any law enforcement agency.
(c) Vide Clause 13, value of the bonds is considered as income derived as voluntary contributions received by the political party, exempted from income tax under amended provisions of Section 13-A of the Income-tax Act, 196177 (IT Act).
The EBS, prior to its final notification, was placed for deliberations and guidance by the RBI before the Committee of the Central Board under the RBI Act. The Committee conveyed serious reservations on the issuance of electoral bonds in the physical form (scrips). It was stated that issuance of EBs amounted to issuance of currency, a “monopolistic function of the RBI”, which function cannot be shared with any other entity or authority. The reservations further stated that issuance of EBs in physical form/script will lead to money laundering, without any digital trail of transactions. It may be exposed to the risk of forgery and cross-border counterfeiting besides offering a convenient vehicle for abuse by aggregators.
The Election Commission of India (ECI) also conveyed its reservation in May 2017 to the floating of EBS in the Indian economy. It stated that non-disclosure of EBs is a retrograde step against transparency of donations. It also red-flagged the permissibility of all the private and government companies from donating to political parties through EBs, without any upper cap/ceiling/limit. Any limited corporate funding would increase the use of black money for political funding, even loss-making companies without any track record would also donate for quid pro quo purposes to a particular political party. However, despite these reservations, EBS, 2018 was finally floated.
The legislative provisions in question, both pre-amendment as well as post-amendment
Prior to the introduction of the EBS, 2018 through the Finance Act, 2017, the following provisions of various parliamentary legislations were amended by the Parliament:
(a) Section 31 of the RBI Act: Prior to amendment, Section 31 authorised only the RBI or the Central Government (on authorisation by the RBI to draw, accept, make or issue any bill of exchange or promissory note for payment of money to bearer of the note or bond). However, post amendment of 2017, the Central Government was authorised to permit any scheduled bank to issue EBs, with the insertion of a specific Section 31, Clause 3.
(b) Section 182 of the Companies Act, 201378: Prior to this amendment, Section 239-A of the previously existing the Companies Act, 1956, provided several checks upon corporate donations to political parties, as also to any individual or body for any political purpose of an amount exceeding Rs 25,000. Firstly, there was a cap on the contributions of 7.5% of the net annual profits in the last preceding three years cap/upper limit. Secondly, the donor company should have been in existence for more than 3 years and contributions should only be made through a resolution passed by the Board of Directors authorising the contribution for the particular purpose. Thirdly, there were penal consequences attached to the violations of provisions laying down conditions for political donations. Fourthly, the company was also required to disclose in its profits and loss account any amount contributed by it to any political party during the financial year with specific particulars of the total amount contributed with the name of the political party to which the contribution was made.
(c) Post the Amendment of 2017, Section 182 was amended to remove the upper cap/limit on corporate funding. Names of political parties to which donations are made were all exempted from disclosure, which was to be made only of a limited nature of the total amount contributed to all the political parties cumulatively, instead of the specific individualised particulars. Companies were also allowed to donate through any scheme framed by the Central Government.
(d) Section 13-A of the Income-tax Act, 1961: Prior to amendment of 2017, there were certain conditions for claiming exemption of income for political parties received through financial contributions. Books, accounts, and other documents with all details of donations and contributions were required to be maintained, received in excess of Rs 20,000. Such books and accounts were required to be audited by an authorised accountant, and to be furnished to the Election Commission of India yearly.
(e) However, Amending Act of 2017 dispensed with the requirement of maintaining record of contributions with specific particulars of the name, address, and other details of the contributor, if the donation was received through EBs. Donations in excess of Rs 2000 could be received only through cheque, bank draft, electronic clearance service (ECS), or through an electoral bond.
(f) Section 29-C of the Representation of the People Act, 195179: Prior to amendment, the political party was required to declare all the details of the contributions received and furnish the said report with all the individualised details of the donor/contributor to the ECI. Failure to furnish the report disentitled the claim for exemption under the IT Act80.
(g) Through the Amendment of 2017, political parties were exempted and relieved of the responsibility of disclosing details of contributions received through EBs to ECI.
Thus, the net effect of amendments introduced by the Finance Act, 201781 to the abovenamed legislation was as follows:
(a) A new scheme for financial contribution to political parties is introduced in the form of electoral bonds.
(b) The political parties need not disclose the contributions received through electoral bonds.
(c) Companies are not required to disclose the details of contributions made in any form.
(d) Unlimited corporate funding is permissible.
The amendments were therefore laid to challenge by way of the number of writ petitions heard by the Constitution Bench.
Issues before the court
The writ petitions challenged declaration of EBS and following amending provisions to be declared unconstitutional:
(a) Amendment to Section 31 of the Reserve Bank of India Act (through Section 135 of the Finance Act, 201782).
(b) Amendment to Section 29-C of the RP Act (through Section 137 of the Finance Act, 201783 and the corresponding amendment).
(c) Amendment to Section 13-A of the IT Act (through Section 11 of the Finance Act, 201784 and the corresponding amendment).
(d) Amendment to Section 182 of the Companies Act (through Section 154 of the Finance Act, 201785 and the corresponding amendment).
The Court based on contentions advanced framed two issues for consideration and resolution in the proceedings as follows:
(a) Whether unlimited corporate funding to political parties, as envisaged by the amendment to Section 182(1) of the Companies Act infringes the principle of free and fair elections and violates Article 14 of the Constitution.
(b) Whether the non-disclosure of information on voluntary contributions to political parties under the Electoral Bond Scheme and the amendments to Section 29-C of the RP Act, Section 182(3) of the Companies Act and Section 13-A(b) of the IT Act are violative of the right to information of citizens under Article 19(1)(a) of the Constitution.
Contentions by the petitioners and the Union of India
It was broadly contended on behalf of the writ petitioners that:
(a) EBS mandates non-disclosure of information of electoral funding, which runs against the soul and spirit of checking “political funding” under the RP Act and “corporate funding” under the Companies Act. It violates Article 19(1)(a) of the voter’s right to information concerning the affairs of the Government of the day. It is also violative of Article 2186 because opaqueness of political contributions through EBs facilitates, and fosters corruption and quid pro quo arrangements associated thereof. Corruption eventually trickles down to the grassroot level, manifesting in the form of bad governance and framing of policies opposed to public interest.
(b) The statutory amendments and the EBS skews free and fair elections as unlimited contributions to political parties give an added advantage in promotion, campaigning, publicity, of the political party concerned, influencing the mind of the voter. It therefore interferes with the freedom to vote.
(c) The presumption of constitutionality cannot apply to statutes or very laws that set the condition under which the legislature comes into being or the political power forms the Government. The EBS severs the link between elections and representative democracy because those elected by utilising the donated/contributed fund are bound to reciprocate the obligations of contributors/donors and not the voters. The quid pro quo of the political party coming to power is inevitable towards its donor. EBS skews the principle of “one person-one vote” as it gives corporates (who are not citizens) a greater opportunity to influence political parties and electoral outcomes.
(d) Infringement of right to information (RTI) does not satisfy the proportionality standards or tests, vis-à-vis a purpose of curbing black money as non-disclosure of information is not the least restrictive measure to achieve the stated purpose of curbing black money.
(e) The EBS does not effectively curb black money as its Clause 14 prohibits de jure trading of EBs, but making de facto permissible. Deletion of cap/upper limit/ceiling on corporate contributions is manifestly arbitrary as it acquits and equalises both the categories of companies, viz. the loss-making companies and the listed profit-making companies. It also removes the control of shareholders over the decision of the Board permitting unlimited contribution by corporates and abrogating democratic principles.
The Union of India on the other hand contended broadly as follows:
(a) EBS is introduced with the laudable objective of checking cash-based incentivised infusion of black money. EBS acts as a check over all such modes of transfer of black money to political parties. Payment of consideration for EBs is only through banking channels, which maintains proper and complete trail of one’s donation.
(b) Political parties play an important role in administration of the affairs of the community in any vibrant democracy and they are entitled to receive all kinds of support, including financial contributions. EBS allows regulated ways of direct transfer and through legitimate banking channels to political parties, instead of unregulated illegal ones.
(c) Confidentiality of the contributions by any donor is necessary to protect him from victimisation or targeting by other political parties and opponents. It is a facet of protected right to privacy of the donor and that a voter or a citizen cannot claim a general right to know regarding funding of political parties.
(d) On disclosure of identity of any contributor or contributory, he is bound to suffer retribution from other competing political parties, which thus balances the interest of all.
(e) The provisions of EBS have specific objectives and purpose of curbing black money, whilst imposing preconditions on the donee, political parties. Ghost political parties are barred from seeking and receiving political funding. Only know your customer (KYC) compliant entities are entitled to buy electoral bonds and the limited validity period of 15 days ensures the bond does not become a parallel currency in the country.
Resolution of the issues framed by the court
The Court repelled the argument of EBs being a decision pertaining purely to economic policy. The amendments were rather held to be relating to the electoral process and pertaining to free and fair elections in the country. The Union of India itself throughout has been treating the amendments as facets of “electoral reforms” and thus now the same cannot be treated as mere economic policy. On the aspect of presumption of constitutionality, Court held that whenever fundamental rights are prima facie shown to have been violative, the presumption stands reverted, and the owners then shifts on the state to prove that violation of fundamental rights is justified. Referring to the judgment of Dharam Dutt v. Union of India87, it was held that the State has to justify the infringement of fundamental rights, whenever established to be occurring through constitutional provisions.
The Court then proceeded to analyse challenge to constitutionality of various amendments to the five enactments in question as follows:
(a) Finances are crucial for the sustenance and progression of electoral politics and money directly influences politics, having direct and immediate impact on electoral outcomes. Electoral campaigns affect the uninformed voters the most, who are assumed to be not possessing knowledge of policy positions of the contesting candidates. Besides innovative techniques of campaigning, beyond the traditional methods of advertisement can be resorted to for leaving long lasting impressions on the mind of one informed voter. Money also creates an entry barrier to politics by limiting the nature of candidates who can contest elections, as it provides cutting edge to those spending money for political campaigning. Referring to the judgment of Vatal Nagaraj v. R. Dayanand Sagar88 and P. Nalla Thampy Terah v. Union of India89, it was held that the amending provisions can be safely labelled guilty for diluting principles of fair and free elections.
(b) It is the effect and not the object of law on fundamental rights that determines the constitutional validity of any statutory provision. The effect of amending provisions cannot be determined without appreciating the deep and persuasive influence of money on politics.
(c) The essential attribute of EBS is maintaining the anonymity of the buyer/purchaser or in other words the contributor to the cause. Tracing the history of RTI under Article 19(1)(a), the Court held that there is a public interest in the impartial administration of justice, which can be secured only by disclosure of relevant and material documents. Referring to the judgment of State of U.P. v. Raj Narain90 and S.P. Gupta v. Union of India91, it was held that the first phase of jurisprudence on RTI focused on closed correlation between right and open guarantee. In the second phase of evolution of jurisprudence of RTI, Court recognised the importance of information as seminal to form views on social, cultural and political issues. In a marketplace of ideas, the right to acquire information becomes important to effectively exercise various fundamental rights. This would also ensure effective exercise of choices about political affiliations.
(d) Referring to the judgment of Union of India v. Assn. for Democratic Reforms92 and PUCL v. Union of India93, it was held that a similar argument of protection against disclosure of criminal antecedents of any candidate was rejected as it was held to be a public information. ECI was held to be empowered to seek information from candidates about expenditure incurred by them as also their criminal antecedents. Action of voting was held to be a form of freedom of expression protected under Article 19(1)(a).
(e) The Court then examined who is the focal point of the electoral process-candidate or the political party; whether political party per se is a relevant political unit. Referring to the Election Symbols (Reservation and Allotment) Order, 1968 framed under Article 344 of the Constitution of India94, dealing with allotment of symbols to recognise political parties, it was held that election symbol creates a demarcation between candidate and the political party. Symbols get entrenched in the minds of voters who associate it with a particular political party and relate their affiliations to the said symbol. Symbols become more pronounced, when names of political parties sound similar. Ideology of the political party is one the main governing factors for any voter to vote for a candidate and in the Westminster system of Government followed by India, the leader of the political party with absolute majority heads the Government. Even the spirit of Schedule 10 to the Constitution of India is premised upon the identity of a political party as a whole. Thus, political parties are a vital unit in a democratic setup.
(f) Accordingly, it was held that the right of the voter to have information about the candidate applies equally on all the fours to political parties, and funding received by any political party therefore becomes essential for an informed voter to be aware about. The Constitution of India guarantees political equality for both the “voter/elector” as well as the “voted/elected”. This guarantee encapsulates equality in representation (1 person-1 vote) and equality in influence over political decisions. However, economic inequality, introduced through money may disturb this constitutional goal of political equality. Economic inequality may disturb this constitutional goal of political equality. The possibility of quid pro quo for financial contributions can never be ruled out and the de jure anonymity of the contributors does not necessarily translate to de facto anonymity. EB’s provide “seats at the table” to economically resourced contributors to any political party in power. Therefore, for exercising freedom to vote in an effective manner, information about funding to any political party is also essential.
(g) Infringement of RTI of any voter must be tested on well laid standards of “proportionality test”. Discussing the “legitimate goal test”, it was held that the objective of introducing the law must also be for the legitimate end especially when it leads to infringement of rights. If the law is indeed in furtherance of the legitimate aim, it is contended to preserve, then further enquiries of proportionality are undertaken. The EBS was introduced for twin purposes of curbing black money and protecting donor privacy. Referring to the judgments of Express Newspaper (P) Ltd. v. Union of India95 and Kaushal Kishor v. State of U.P.96, it was held that fundamental rights of any citizen cannot be restricted on grounds not falling within the confines of fundamental rights under Article 19(1). The purpose of curbing black money is not traceable to any of the grounds stipulated under Article 19(2) and therefore cannot be a reason or justification to restrict RTI available under Article 19(1)(a) of any citizen.
(h) Whether the means used are rationally connected to the purpose/objective is the second prong of proportionality analysis. The third prong is that the least restrictive means must be adopted to give effect to the purpose for which legislation is designed. The Court whilst analysing EBS discussed the pre-amendment scenario, especially the alternative legal regime of “electoral trust”, as provided under Section 2(22-AAA)97 read with Section 13-B98 of the IT Act. Thereunder, details of both the political parties as also the contributor are maintained and provided to the IT authorities. Which contributor has donated what and how much amount to which political party is not disclosed and thus anonymity of donation is maintained. Electoral trusts were thus held to be an effective alternative, addressing all the concerns of contributors. The EBS to the contrary does not have any opening through which disclosures of contributions are made available to the voter. It also does not possess any regulatory check for preventing trading of bonds to third parties. EBS thus is not the least restrictive means to achieve the purpose of curbing black money in any electoral process. It fails to qualify the least restrictive means test and cannot be held to be the only means for curbing black money in electoral finance.
(i) On the aspect of donor privacy as the justification, the Court referred to the judgment of K.S. Puttaswamy (Privacy 9-J.) v. Union of India99 to hold that there is a fundamental right to informational privacy about a citizen’s political affiliation.
(j) One’s right to privacy over his intimate decision includes and extends to both the process as well as the thought leading to the decision. Privacy over intimate decisions leads to effective and meaningful exercise of fundamental freedoms like that of thought, expressions, speech, and association freely without coercion. Therefore, privacy of political affiliation is also a facet of privacy and denial of the same would be catastrophic. Information leakage or disclosure of information about political affiliation can be used to disenfranchise voters through voter surveillance. The said right extends to contributions to political parties as well. Merely because a portion of contribution may be made for ulterior reasons/oblique motives, does not warrant denial of informational privacy to political contributions to parties.
(k) However, equating the concept of anonymous political contributions under EBS with the one being made under electoral trust is erroneous, as both cannot be treated alike.
(l) The Court then undertook the delicate task of balancing RTI and the right to informational privacy of political contributions. Resorting to the proportionality test, the Court held that whilst balancing two fundamental rights, the Court must examine where lies the larger public interest. Referring to the judgments of Mazdoor Kisan Shakti Sangathan v. Union of India100 and Sahara India Real Estate Corpn. Ltd. v. SEBI101, it was held that the “structured proportionality standard” must be applied to balance two fundamental rights. In case of fundamental rights on both the sides of the see-saw, double proportionality standard is to be applied. Referring to the judgments of Campbell v. MGN Ltd.102 and Supreme Court of India v. Subash Chandra Agarwal103, it was held that balance must be struck by applying the following standards and tests:
(1) Does the Constitution create a hierarchy between the rights in conflict? If yes, then the right which has been granted a higher status will prevail over the other right involved. If not, the following standard must be employed from the perspective of both the rights where rights A and B are in conflict.
(2) Whether the measure is a suitable means for furthering rights A and B.
(3) Whether the measure is least restrictive and equally effective to realise rights A and B.
(4) Whether the measure has a disproportionate impact on rights A and B.
(m) Accordingly, analysing amended Section 13-A of the IT Act dispensing with the requirement of maintaining records of contribution by political parties, as also other amended provisions, the Court enquired whether the means used are suitable, necessary and proportionate to the fundamental rights violated, viz. the right to information (RTI). Held, that non-disclosure of information grants anonymity to the contributor satisfies the purpose of informational privacy, but it fails to meet the suitability prong. There is no nexus between the absolute non-disclosure of the information to the voter and the curbing of black money justification. It also fails to meet the necessity prong because there are multiple alternatives in which the information can be disclosed to various authorities under the respective enactments in the form of annual audit reports.
(n) The right to privacy of political affiliations does not extend to contributions which may be made to influence policies, above a particular amount and not made as a genuine form of political support or affiliation. EBS completely tilts the balance in favour of informational privacy of political contributions, whilst abrogating RTI and thus cannot be treated as the least restrictive means to balance the fundamental rights. The various amendments, specifically to Section 13-A of the IT Act and Section 29-CC of the RP Act were held to be unconstitutional for having an intrinsic element of anonymity of the contributors. The EBS was also consequently struck down.
(o) On the challenge to the constitutionality of the amended Section 182 of the Companies Act, 2013, it was held that in the unamended provisions disclosure requirements were included to ensure that corporate interests do not unduly influence electoral democracy and if they do so, then the electorate must be consciously aware of it. The pre-amended provisions required disclosure of specifics and particulars of the contributions, whereas post-amendment only the total contributions made to political parties is to be disclosed and not the individualised ones. The complete non-disclosure of the contributions by the companies was thus held to be unconstitutional.
(p) Referring to the judgment of Jayantilal Ranchhoddas Koticha v. Tisco Ltd.104, as also the Report of Santhanam Committee on Prevention of Corruption, 1963, it was held that corporate funding to political parties has always been shunned. Both the loss-making as well as profit-making companies are allowed to donate unlimited amounts to parties, without any upper limit/ceiling/cap, which fails to appeal to reason and rationality.
(q) Referring to the judgments of E.P. Royappa v. State of T.N.105, Malpe Vishwanath Acharya v. State of Maharashtra106 and Shayara Bano v. Union of India107, it was held that any legislative provision also can very well be tested and examined for its constitutionality on the grounds of being manifestly arbitrary. Manifest arbitrariness was held to be one of the basis for striking down any plenary legislation and provision, being violative of Article 14. Referring to the judgments of Navtej Singh Johar v. Union of India108 and Joseph Shine v. Union of India109, it was held that standards of manifest arbitrariness for examining and striking down any plenary legislation can be applied in the following contingencies and grounds:
(1) A provision lacks an “adequate determining principle” if the purpose is not in consonance with constitutional values. In applying this standard, the courts must make a distinction between the “ostensible purpose”, that is, the purpose which is claimed by the State and the “real purpose”, the purpose identified by the courts based on the available material such as a reading of the provision.
(2) A provision is manifestly arbitrary even if the provision does not make a classification.
(r) Accordingly, the Court concurred with the judgment of Shayara Bano case110 and held manifest arbitrariness to be one of the grounds for testing the validity of plenary legislation as well.
(s) Accordingly, applying the test of manifest arbitrariness to the amended Section 182 of the Companies Act, specifically removing the restrictions on contribution by corporates to political parties, it was held that it unduly interferes into the “republican and democratic form of Government”, held to be basic elements of constitutional structure. Unlimited corporate funding disturbs the integrity of the election process. This is more so when loss-making companies also contribute heavily. The Parliament thus failed to make a classification by recognising the degrees of harm and the purpose of amendment of Section 182 not being in consonance with constitutional values. The chief reason behind corporate funding is to influence the political process, which may in turn improve the company’s business performance. Thus, companies and individuals cannot be equated similarly for the purposes of political contributions and amended Section 182 introducing the element of quid pro quo behind corporate funding becomes manifestly arbitrary.
Concurring opinion of Justice Sanjiv Khanna
Justice Sanjiv Khanna, concurring with the conclusion arrived at by the Court, penned his own separate opinion though reaching the same conclusion. The Judge applied the four-pronged test of the doctrine of proportionality, which subsumes the test of manifest arbitrariness to strike an appropriate balance between the fundamental right and the avowed objective of the restriction. It was further held that an analysis of proportionality would be more accurate when empirical inquiries on the relationship between the legislative measure and the ends of such measures are considered and would further lead to better democratic governance.
(a) The four-pronged test of proportionality was held to be comprising the following steps: Whether the act restricting the fundamental right has a legitimate aim/purpose? Whether the restriction has a rational connection with the aim? Whether there should have been a less restrictive alternative measure that is equally effective? To strike an appropriate balance between the fundamental right and the pursued public purpose.
(b) On the test of legitimate aim or purpose, it was held that retribution, victimisation or retaliation against a donor exercising their choice to donate to a particular political party is an abuse of law and power and such a wrong cannot be a valid justification or a purpose under the test of proportionality. Further, by providing a cloak of secrecy, this law leads to severe restriction and curtailment of the collective’s right to information. It was held that transparency and not secrecy is the cure and antidote.
(c) Even if the purpose is accepted to be legitimate, the fear of reprisal and vindictiveness subsists since the identity of the bond’s purchaser is recorded by the bank and can be revealed through the registration of a criminal case and therefore fails the rational nexus prong. Further, it was held since the purpose of curtailing black money has no relationship with the anonymity of the donor, this scheme also fails the rational connection test.
(d) Applying the necessity test propounded in Anuradha Bhasin v. Union of India111, the “electoral trust arrangement” was held to achieve the objectives of the Union in a real and substantive manner and at the same time, be less restrictive of the right to know of the voters. Under this scheme, contributions are to be made directly by the corporates to the electoral trust which are then transferred to the political party. The trust is ultimately treated as the contributor and under the guidelines issued by the ECI, transparency and openness in this process is maintained. In the presence of such equally effective alternate measure, the EBS fails the test of necessity.
(e) Relying on the judgment of Campbell case112 it was held that when two fundamental rights are in conflict, the single proportionality test cannot be applied on its own. It was held that when two fundamental rights are in conflict, the balancing test laid down in In Re. W113 must be applied. It was held that in a democracy, a voter’s right to know is far too important and neither the right to privacy nor the purpose of incentivising donations through banking channels can overshadow the same. The confidentiality of the voting process cannot be extended to anonymity in contributions to political parties and transparency in such funding is essential for free and fair elections.
(f) Further, on the issue of the right to privacy, relying on K.S. Puttaswamy (Privacy 9-J.) case114 and Harold Bernstein v. L. Von Wielligh Bester NO115, it was held that as a person moves into communal relations and business interactions, the scope of personal space shrinks contextually and the right to privacy must yield when dissemination of information is legitimate and in public interest.
(g) Relying on the 255th Law Commission Report, the problem of financial superiority of corporates or individuals translating into electoral advantage was discussed. It was held that lobbying allows for undue advantage to big donors at the expense of the ordinary citizen. Further, the line between persuasion and corruption is blurred when money is exchanged as a quid pro quo. Relying on the judgment of an Australian High Court in Jeffrey Raymond McCloy v. State of New South Wales116, it was held that quid pro quo corruption, a type of subtle corruption arises when those in power prioritise the wishes and desires of wealthy contributors as opposed to the general desires of their constituencies which negatively affects the vitality and integrity of the Government, and poses a threat to the electoral process itself. The Supreme Court of the United States in James L. Buckley v. Francis R. Valeo117 also acknowledged that quid pro quo arrangements posed dangers to a fair and effective Government. Relying on Grosjean v. American Press Co.118, it was held that the most potent restraint upon misgovernment is informed public opinion. Analysing the quantum of the donations made anonymously through these bonds, it was held that the Scheme fails to meet the balancing prong of the proportionality test.
(h) It was further held that the claim of privacy by a company would be restricted to the extent of protecting the privacy of individuals responsible for conducting the business of the company and not on a wide range of other grounds. Further, since the affairs of a company have to be open to the shareholders and the public who interact with the body corporate, it is very difficult to claim a violation of privacy by such body corporate.
Accordingly, the concurring opinion directed the ECI to disclose in full the particular details of the donor and the amount donated and collected through EBs in compliance of the interim order dated 12-4-2019 passed earlier by the Supreme Court. Further, the Scheme was held to be unconstitutional based on the above reasoning and accordingly struck down in line with that so held by the majority opinion.
Ultimate directions
Accordingly, after giving its reason, the Court held various provisions of enactments, viz. amendment to Section 31 of the RBI Act (through Section 135 of the Finance Act, 2017) and the corresponding amendment to Section 29-C of the RP Act (through Section 137 of the Finance Act, 2017) and the corresponding amendment to Section 13-A of the IT Act (through Section 11 of the Finance Act, 2017 and the corresponding amendment), amendment to Section 182 of the Companies Act (through Section 154 of the Finance Act, 2017) to be unconstitutional and issued the following directions:
(a) The issuing bank shall herewith stop the issuance of electoral bonds.
(b) State Bank of India (SBI) shall submit details of the electoral bonds purchased since the interim order of this Court dated 12-4-2019 till date to the ECI. The details shall include the date of purchase of each electoral bond, the name of the purchaser of the bond and the denomination of the electoral bond purchased.
(c) SBI shall submit the details of political parties which have received contributions through electoral bonds since the interim order of this Court dated 12-4-2019 till date to the ECI. SBI must disclose details of each electoral bond encashed by political parties which shall include the date of encashment and the denomination of the electoral bond.
(d) SBI shall submit the above information to the ECI within three weeks from the date of this judgment, that is, by 6-3-2024.
(e) The ECI shall publish the information shared by the SBI on its official website within one week of the receipt of the information, that is, by 13-3-2024.
(f) Electoral bonds which are within the validity period of fifteen days but that which have not been encashed by the political party yet shall be returned by the political party or the purchaser depending on who is in possession of the bond to the issuing bank. The issuing bank, upon the return of the valid bond, shall refund the amount to the purchaser’s account.
* * *
(4) State of Punjab v. Davinder Singh119
(Delivered on 1-8-2024) Supreme Court of India (SC)
Coram: 7-Judge Bench of Justices Dr D.Y. Chandrachud, C.J.I, Manoj Misra, B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal and S.C. Sharma, JJ.
Majority judgment authored by: Dr Justice D.Y. Chandrachud
Background of the reference to Constitution Bench and necessary constitutional provisions involved
The reference to the Constitution Bench raised significant questions about the right to equal opportunity guaranteed by the Constitution of India in the context of permissibility of sub-classification of the Scheduled Castes /Scheduled Tribes for reservation benefits. Articles 14 to 16120 provides for the principles of equality and abhor discrimination against any citizen on grounds provided thereunder. Article 366(24)121 defines Scheduled Castes and such castes, tribes or parts, that are deemed under Article 341122 to be Scheduled Castes for the purposes of Constitution of India. Likewise, Articles 342123 and 342-A124 related to notification of Scheduled Tribes and Socially and Educationally Backward Classes respectively with pari materia provisions to Article 341.
The genesis of the reference to the Constitution Bench arose in the context of doubts being raised on the earlier Constitution Bench judgment of E.V. Chinnaiah judgment125 , by a three-Judge Bench against in matters arising from various States, as follows:
(A) State of Punjab: Wherein 50 % of the vacancies of the quota reserved for Scheduled Castes were reserved for certain castes of Valmikis and Majhabi Sikhs as first preference amongst the Scheduled Castes, which was so declared unconstitutional by the Punjab & Haryana High Court (P&H High Court).
(B) State of Haryana: Wherein Scheduled Caste were classified into two categories, viz. Blocks A and B, providing quota based reservation on the basis of blocks. This was also struck down by the P&H High Court as unconstitutional.
(C) State of Tamil Nadu: Wherein first preference to reserved seats was given to “Arunthathiyars”, which in turn included certain other castes within, it involves the educational institutions of the states. This was directly challenged before the SC under Article 32 of the Constitution of India126.
The Constitution Bench judgment in E.V. Chinnaiah judgment
In E.V. Chinnaiah judgment127, constitutional validity of the APSC Act of 2000 was laid challenge, wherein Scheduled Castes were sub-classified into four groups and reservations fixed for the various groups within the larger compartment reserved for Scheduled Castes. The Constitution Bench struck down the AP Act as unconstitutional, with the majority and the supporting CO holding broadly as follows:
(A) Scheduled Castes form a class by themselves as per the judgment of State of Kerala v. N.M. Thomas128. The act of redistributing the reservation by sub-classifying the Scheduled Castes is against the constitutional mandate by apportioning reservation amongst such sub-classes. The State does not enjoy legislative competence, and once the State has fulfilled the obligation to reserve certain seats under Articles 15(4)129 and 16(4), it cannot thereafter further sub-classify them. Scheduled Castes constitute a class and a classification already exists. The rationale of Indra Sawhney judgment130 permitting sub-classification within the larger Other Backward Classes (OBC) class did not apply to Scheduled Castes.
(B) Sub-classification of Scheduled Castes would tinker with the Presidential List, thereby violating Article 14 and such sub-classification amongst Scheduled Castes would be unreasonable, denuding them of the adoption of uniform yardstick for getting the constitutional benefits.
(C) “Micro-classification” as a concept is impermissible under Article 14, especially when backwardness of the class is the link holding the class together with the people situated within the said class. Once a classification based on backwardness of the class comes into existence, there cannot be further classification based on backwardness of the caste.
Accordingly, the Court framed the following broad issues for consideration by the Constitution Bench, which were as follows
(a) whether sub-classification of a reserved class is permissible under Articles 14, 15 and 16;
(b) whether the Scheduled Castes constitute a homogenous or a heterogeneous grouping;
(c) whether Article 341 creates a homogenous class through the operation of the deeming fiction; and
(d) whether there any limits on the scope of sub-classification.
Jurisprudence on “reservation”, in the context of concept of “efficiency”
The Court first held that reservation is an exposition of “substantive equality”. Referring to various judgments, especially of State of Madras v. Champakam Dorairajan131 , it was held that what Articles 14 to 16 envision is factual equality and not formal equality in law; two persons who are not similarly situated can never be treated alike. Referring to M.R. Balaji v. State of Mysore132 and N.M. Thomas case133, it was observed that Article 16(4) is not an exception to the principle of equality of opportunity, but an elucidation and explanation to the principle under Article 16(1). The Constitution of India was held to be espousing a substantive vision of equality where reservation is not an exception, but an illustration of constitutionally sanctified classification. Thus, the jurisprudence of reservation has never treated reservation as an exception, but as an extension of the principle of equality of opportunity. The next question which the Court answered was the head-on conflict between demand for reservation on one hand with emphasis on the efficiency of service for limiting the scope of reservation, on the other. Referring to the judgments of Southern Railway v. Rangachari134 and Indra Sawhney judgment135 especially when 77th Amendment to the Constitution inserting Clause 4-A under Article 16 was introduced, it was held that the social benefit of reservation always comes at the cost of impairment and that reservation of appointments of post conceivably though means some impairment of efficiency, but such an impairment is permissible. Referring to long line of judgments especially that of T. Devadasan v. Union of India136 and M. Nagaraj v. Union of India137 it was held that understanding of the courts has been that the scope of reservation must be expanded to ensure substantive equality in spite of its continued dilution of efficiency. It was held that Article 335138 is thus not a limitation on the exercise of powers of Article 16(1), 16(4) and 16(4-A), rather it is a restatement of the necessity of considering the claims of Scheduled Tribes and Scheduled Caste in public services. Efficiency of administration must not be viewed in terms of narrow lens and scores of an examination, but in terms of inclusivity and equality as required by Article 16(1). It is premised on the laudable belief that reservations, though imply the selection of less meritorious person, but given the opportunity, they would overcome the barriers and prove their merit substantially.
Permissibility of sub-classification under Article 14 as a necessary facet of equality
The spirit of Article 14 is that the same law should apply to those who are similarly situated and equal laws to be equally administered. This is because Article 14 guarantees factual and not formal equality, and the law can further classify a class that is already created by law for a limited purpose if it is heterogeneous for another purpose. Such a classification within a class of heterogeneous components is valid under Article 14. Referring to the judgments of All India Station Masters’ & Asstt. Station Masters’ Assn. v. Central Railway139, and Mohd. Shujat Ali v. Union of India140, wherein rule was upheld holding that classification based on educational qualification for the purpose of promotions is not unreasonable. Such a classification on the basis of educational qualifications for the same post had a reasonable nexus with the objective promotion, which was to achieve administrative efficiency in engineering services. The Court held in the context of different educational qualifications for the same post because it was not a classification based on source of service, but based on different criteria which separated both the categories of candidates/employees, viz. the criteria of educational qualification.
Referring further to the judgments of D.S. Nakara v. Union of India141 and State of J&K v. Triloki Nath Khosa142, it was held that scope of sub-classification never hinges on the yardstick which is used to intricate groups into a class but on the issue of whether the class is homogenous or integrated for the specific objective of the law. When a law integrates the class such as diploma and degree holders it integrates the class for the purpose of that specific law and not for all purposes. A class which is not similarly situated for the purpose of the law can be further classified, in respect of which following tests were evolved for determining the validity of such sub-classification:
(A) Whether the class is “homogenous” or “similarly situated” for the purpose of the specific law.
(B) If the answer to “a” above is in the affirmative, the class cannot be sub-classified.
(C) If the answer to “a” above is in the negative, the class can be sub-classified upon the fulfilment of the following standard:
(i) there must be a yardstick (or intelligible differentia) further classifying the class; and
(ii) The yardstick must have a rational nexus with the object of the statute.
Micro-classification and the limits of sub-classification
The Court held that generally the rule against micro-classification, being impermissible under Article 14, but however in certain cases even a single individual may be treated as a class by themselves if two components are satisfied:
(a) the purpose; and
(b) the rational basis for the principle of differentiation, with the purpose completely independent of the differentiation. Apart from this the principle in itself underlying the classification must be reasonable and rational and should not be arbitrary.
Sub-classification in reservation and evolution of the said doctrine
Originally, in M.R. Balaji case143, sub-classifications of backward classes were held to be unconstitutional, having been based solely on the caste, which was questioned in the judgment of K.C. Vasanth Kumar v. State of Karnataka144. Then came the judgment of Indra Sawhney case145, wherein three principles emerged from the view of the majority with respect to sub-classification, are as follows:
(A) Sub-categorisation within a class is a constitutional requirement to secure substantive equality in the event that there is a distinction between two sections of a class.
(B) Sub-classification must not lead to the exclusion of one of the categories in the class. A model that provides sufficient opportunities to all categories of the class must be adopted.
(C) Sub-classification among a class must be on a reasonable basis. Justice Sawant held that the distinction between the categories must be substantial. Justice Jeevan Reddy held that the sub-categorisation must be reasonable.
The Court further held that as erroneously held in E.V. Chinnaiah judgment146, Indra Sawhney judgment147 never intended to exclude sub-classifications within the Scheduled Castes. As at two places in the judgment, the observations were limited to be operative for OBCs, not being extended to Scheduled Castes and Scheduled Tribes, since the question did not arise. In the context of permissibility of sub-classification under Article 16(4), it was held in Indra Sawhney judgment148, that Scheduled Castes and Scheduled Tribes are admittedly included in the backward classes under Article 16(4). But however, the principle of sub-classification was given judicial assent affirmatively by the majority for ensuring that substantive equality is fulfilled. The very same principle will be applicable to the Scheduled Castes if the social positions of the constituents amongst the castes/groups is not comparable or is heterogeneous.
Deeming fiction under Article 341 and its contours
Article 366(24) defines Scheduled Castes as the castes, groups, races or tribes deemed to be Scheduled Castes under Article 341. It does not offer any assistance on the criteria or rationale to be satisfied by such entities to be notified as Scheduled Castes under Article 341, but only refers to deeming fiction created by Article 341. The President under Article 341 only specifies the entities to be Scheduled Castes, which are deemed to be Scheduled Castes for the purposes of Constitution of India in relation to the State, without defining or determining any criteria as to how the President has arrived at the rationale or finding of specifying such entities as Scheduled Castes.
Court held that use of the phrase “deemed to be” is never conclusive of a legal fiction and plainly just means “regarded as being”. Referring to the Constitution Bench judgment of Bengal Immunity Co. Ltd. v. State of Bihar149, it was held that legal fictions are created only for a certain purpose, and must be confined only to the legitimate field. Its operation can be extended to the consequences which logically flow from its creation, and cannot create presumptions in favour of legal consequences, but presumptions only about facts from which certain legal consequences may follow. Referring to the two judgments of East End Dwellings Co. Ld. v. Finsbury Borough Council150 and Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan151, it was held that a validating act creating a deeming fiction required only the deeming of a legal position rather than deeming of a fact from which legal consequences of inclusion and exclusion of certain villages to and from the quota municipality in the State was implemented.
Article 341 was held to consist of three parts, which are as follows:
(a) first part lays down the procedure for notifying a caste as Scheduled Caste, which is done by the President in consultation with the Governor;
(b) second part, a provision similar to Art. 366(26), providing some clarity on who could be notified as Scheduled Caste; and
(c) the third part, which provides the deeming provision of such an entity to be treated as Scheduled Caste for the purposes of Constitution of India.
Thus, the deeming provision ensures only that entities of castes shall be regarded as Scheduled Castes by the very and mere act of notifying them under Article 341(1) by the President. The inclusion of the word “deemed” has no other purpose than the above and therefore, it does not create any legal fiction or provide any artificial construction. Thus, the corollary cannot flow out from such a deeming clause that it creates a homogenous unit, but the purpose of Article 341 is only to demarcate them and separate them from castes which are not so included in the category. It cannot be stretched to draw inferences about the existence or non-existence of internal differences amongst the Scheduled Castes. Accordingly the Court held that the view and the inference drawn in the judgment of E.V. Chinnaiah judgment152 of Scheduled Castes being a homogeneous class being erroneous and contrary to the spirit of Article 341.
The Court further held that limited purpose of Article 341 is only to proscribe exclusion or inclusion in the Scheduled Castes list, once notified by the President, which is conclusive and must be taken as it is once notified under Article 341. The power to vary the lists vests only and only in the Parliament, to include, exclude or modify any entry in the said list. The prohibitions under Articles 341 and 342 are twofold:
(i) Firstly, specification as SC is circumscribed by the territorial limits of the State, specific to which a particular group has been notified.
(ii) Secondly, only the Parliament is vested with the power to alter, include or exclude from the list any entity so notified by the President.
Thus, after notification, even the President is denuded of any power to vary the list by a subsequent notification providing for variation, inclusion or exclusion of any entity from the list, which power gets completely vested with the Parliament under Article 341(2). Thus, it was held that the conclusion in E.V. Chinnaiah judgment153, that sub-classification would amount to tinkering with the list notified by the President is erroneous, as the power was never vested with the President.
The Court thus held that Article 341, therefore nowhere bars sub-classification within the Scheduled Castes for the purposes of affirmative action, including reservation, till and until the State or the Central Government whilst doing so does not include or exclude any caste or group from the list. Till the list notified by the President under Article 341(1) is intact, sub-classification for the purposes of subjecting Scheduled Castes to different models of reservation, without any exclusion from the list is therefore per se not unconstitutional.
Historical and empirical evidence of inter se backwardness within the Scheduled Castes demonstrating “heterogeneity”
The Court dealt with the issue of inherent heterogeneity of Scheduled Castes being, in the face of argument of the respondents that there cannot be any sub classification/categorisation of Scheduled Castes because all the castes face the same form of social backwardness. As stated above, neither Article 341, nor Article 366(24) prescribes any determining criteria for their identification.
Referring to the Government of India Act, 1935, especially Clause 26(1) of the First Schedule, it was stated that Scheduled Castes were defined to correspond to classes of persons formerly known as the “depressed classes”. These “depressed classes” were defined from time to time by various committees constituted by the Government, from which various tests evolved to determine if the caste faces untouchability. The following tests were accordingly directed to be considered:
(a) whether the caste or class in question can be served by clean Brahmans or barbers, water carriers, etc. who serve the caste Hindus;
(b) whether the caste or class in question is one from whose hands a caste Hindu can take water or gets polluted; and
(c) whether in ordinary social intercourse, a well-educated member of a caste or class in question will be treated as an equal by high caste men of the same educational qualifications, or would still suffer social disability, despite being educated.
And there were many other tests for determining the “depressed castes”. Accordingly, though the test was relating to untouchability, but all the castes that met the above tests were identified as “depressed castes” and thus treated as Socially and Educationally Backward Classes. In the Constitution (Scheduled Caste) Order 1950 certain castes were notified as Scheduled Castes in specific localities or in specific regions of the State whilst only few were notified as such throughout the State. Thus, statutorily Scheduled Castes were not treated to be suffering from identical forms of untouchability. On this ground the Court held that Scheduled Castes therefore cannot be treated as a “homogenous class”.
The Court then discussed the empirical evidence of heterogeneity by referring to various reports prepared by various researchers in various states extensively to hold that there are inequalities even within the Scheduled Castes, who therefore cannot be treated as an integrated class facing the same extent of backwardness or social disability.
Power of the State to sub-classify under Articles 15 & 16 and the criterias thereof
Article 16(4) empowers the State to make provisions for reservation in appointments or posts in favour of “any backward class of citizens”. Unlike Article 15(4) it does not distinguish amongst the Scheduled Caste s/STs or Socially and Educationally Backward Classes. Article 15(4) and 15(5), being similarly worded however, empower the State separately for Socially and Educationally Backward Classes and Scheduled Caste s/ Scheduled Tribes.
As stated above, Scheduled Castes as notified under Article 341 are a heterogeneous class, with groups within the class suffering from varying degrees of social backwardness. Thus, the State empowered under Articles 15 and 16 is free to identify different degrees of social backwardness and provide special provisions to achieve or redress the specific degree of harm so identified. There is nothing under Articles 15, 16 or Article 341 preventing the State from sub-classifying the class of Scheduled Castes. The State cannot be denuded the power of conferring the benefit of affirmative action on classes where it is most necessary. The next question is about criteria for sub-classification, which was discussed at length by the Court. Article 16(4), as opposed to Article 15(4) uses the qualifier “adequate representation”, which is therefore, a test to determine the extent of backwardness of any class/caste for being sub-classified. Article 15(4) uses the phrase “social and educationally backward”, which the Court held referring to the judgment of Janki Prasad Parimoo v. State of J&K154, that phrases socially and educationally are used cumulatively, meaning thereby they are not mutually exclusive concepts, but co-existential and existing interdependently.
Referring to the judgment of K.C. Vasanth Kumar case155, the Court held that Article 16(4) applies to much larger class and canvas than Article 15(4), beyond the Socially and Educationally Backward Classes referred to under Article 340156. Backwardness under Article 16(4) is mainly social backwardness and cannot be treated as both social and educational. This is the essential difference between the criteria laid down under Articles 15(4) and 16(4). However, determining criteria of class under Article 16(4) is not backwardness, but inadequacy of representation.
Thus, the class concerned must not only be backward, but must also be inadequately represented for the purposes of Article 16(4). It was thus held that the two phrases “backward” and “not adequately represented,” under Article 16(4) cannot be interpreted in a mutually exclusive manner, but have to be read conjointly, collectively and attached with each other.
The Court then explained the criteria for determining “effective representation”, holding that inadequacy of representation must not be determined only on the basis of total number of members of backward class in the services of the State, but by assessing the representation of the class across various posts. Referring to the judgment of Southern Railway v. Rangachari157, it was held that adequate representation means not only numerical representation but qualitative representation in selection posts in the services as well.
The Court then discussed the yardstick for sub-classification.
How does the State identify inter se social backwardness within the Scheduled Castes? The inter se backwardness is to be identified based on inadequacy of effective representation, attributable to its social backwardness. Here the majority opinion agreed with the Concurring Opinion of Justice Gavai that State must prove that the group/caste carved out from the larger group of Scheduled Caste is more disadvantaged and inadequately represented, as a test for the sub-classification.
Model of implementation of sub-classification and special provisions
The Court then discussed the scope and model of implementation of sub-classification and enactment of special provisions in respect thereof. Two issues were dealt with, in the above context:
(a) whether the State should earmark seats for the each of the sub-categorised classes or follow a preference model; and
(b) whether the State can allocate seats or preference for each of the castes in the Scheduled Castes List.
The merits and demerits of both the models as aforementioned were discussed and the modality of implementing them. In the above context referring to Article 16(4-B), the Court held that the State can always carry forward the vacancies, reserved for a specific sub-category, exercise of which shall be legal and valid. This will also ensure that the real beneficiary castes will always have the chance to compete for the seats earmarked for them. However, the State will have to justify the basis of its action on the basis of quantifiable and demonstrable data bearing on levels of backwardness and representation in the services of the State, whenever its action is challenged. It cannot act merely on its whims or as a master of political expediency.
The caste-class conundrum
Is it permissible to classify the Scheduled Castes by providing preference or reservation in a percentage of seats to every caste. Referring to Indra Sawhney judgment158 it was held that caste can be identified as a unit, since it is homogenous to which criteria of backwardness can be applied, with the rider that State must have sufficient material to prove inter se backwardness between each of the classes. An example was given of allocating seats for two castes of dhobi and barber. It is not sufficient for both the castes to suffer from different levels of social backwardness and could not have been differentiated on the basis of traditional occupation. The State has to back up the justification of providing them special reservation with the data on effective representation of the caste in the services of the State and likewise. Whether they can be grouped together or not or can then be assessed appropriately.
Scope for judicial review — inter se backwardness and adequacy of representation
Referring to the judgment of M. Nagaraj case159, State is obligated to submit quantifiable data to prove both backwardness and inadequacy of representation (in the context of Article 16(4)). Though the State is not required to collect data to prove backwardness of the entire class, but the data must show inter se backwardness within the class whenever sub-classification is provided. The adequacy of representation was held of the sub-categories in the services of the State. Such adequacy must be calculated based on effective and not quantitative representation.
With the above directions, accordingly the reference was answered by the majority.
Concurring judgment of Justices B.R. Gavai, Vikram Nath and S.C. Sharma
Background of issuance of the presidential order under Article 341, 342 of the Constitution of India
The concurring judgment traced the roots of casteism in India, especially the categorisation of “depressed classes”, which had been the nomenclature commonly used in India for low caste Hindus, who suffer from the stigma of untouchability. The word “class” in the pre-independence India was synonymous for “caste”. The judgment details various disabilities which the “depressed classes” were subjected to in the societal order by the upper castes in day to day matters of livelihood. Definition of Scheduled Castes was provided vide Clause 26 of the First Schedule to the Government of India Act, 1935, whereunder Scheduled Castes were defined as classes of persons formerly known as the “depressed classes”, so specified by His Majesty in Council. The definition of Scheduled Castes was thus traceable to the “depressed classes”, used in a generic sense earlier with the most backward sections of people suffering untouchability included in it. The various castes or entities under the Government of India Act of 1935 as notified under Parts I to IX of the Government of India (Scheduled Castes) Order, 1936 were deemed to be Scheduled Castes in the provinces to which those parts respectively relate to. For different Provinces, different castes were notified, and it is this Government of India (Scheduled Castes) Order, 1936, that became the basis and foundation of the Constitution (Scheduled Caste) Order 1950 so issued by the President under Article 341(1) after the commencement of the Constitution in the post-independence era. The Court thus held that the purpose of Articles 341/342 was thus only to identify the entities which were entitled to the privileges so defined for them in the Constitution of India. Both these Article were never intended to provide the privileges, but only identified the caste entities. The modification, elimination or addition to the list so notified could be done only by the Parliament thereafter (after notification) and not by the President.
Evolution of the law of reservation
Referring to M.R. Balaji case160, it was stated that the State had applied the sole criteria of caste, without regard to the other factors. The criteria of social backwardness of the community to which the GOI order applied was not premised on the rationale criteria and impermissible under Article 15(4), for which reason it was struck down.
Thereafter in the judgment of N.M. Thomas case161, the validity of provisions made by the Kerala Government for providing affirmative action to Scheduled Castes and Scheduled Tribes was challenged. The majority in N.M. Thomas case162, held that the principle of “proportional equality” must always be followed, that can be attained only when equals are treated equally and unequals unequally. The existence of equality depends not merely on the absence of disabilities, but more on the presence of abilities. The beneficiaries of reservation must be determined by two tests: firstly, that the conditions of caste or group of community should be more or less similar to the conditions in which Scheduled Castes/Scheduled Tribes are situated; and secondly, that the income of the family to which the candidate belongs does not exceed the specified limit. These two determine the beneficiaries of any reservation to be made under Article 15(4). These two-pronged tests were required for the beneficiaries of Article 15(4), whilst for Article 16(4), what is required is that the backward class concerned was not adequately represented in government services.
The Court then extensively discussed the 9-Judge Constitution Bench judgment in Indra Sawhney judgment163. This judgment permitted sub-classification of backward classes into the backward and more or most backward provided, separate quotas are prescribed for each of them. The majority also held that if the advanced section in a backward class is so advanced as to be able to compete with the forward class, the advanced section from the backward class no longer belongs to the backward class and should cease to be considered so and denied the benefits of reservation under Articles 15(4) and 16(4).
Then the discussion on E.V. Chinnaiah judgment164, was undertaken, already referred to above. This was followed by the discussion on two judgments of M. Nagaraj case165 and Jarnail Singh v. Lachhmi Narain Gupta166, in both of which judgments, the Court consistently applied the test of creamy layer and obligated the State for collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class even in the context of Scheduled Castes and Scheduled Tribes. Extending the principle of exclusion of creamy layer applicable to OBCs to Scheduled Castes and Scheduled Tribes, it was held that the same would apply on all the fours to Scheduled Castes and Scheduled Tribes.
Referring to the speech of Dr B.R. Ambedkar during the Constituent Assembly Debates, the Court explained what is a “backward community” ― a community which is backward in the opinion of the Government so determined by the local authorities. Thereafter reading the majority judgment in N.M. Thomas case167, the majority nowhere held that Scheduled Castes are a homogenous group whose sub-classification is impermissible. Article 16(4) is one of the expressions and extensions of the principle of “equality of opportunity” laid down under Article 16(1) and 16(4) is an emphatic way of putting the extent to which “equality of opportunity” could be carried i.e. up to the point of making reservations Thus, Articles 341 and 342 had nothing to do with the concept of reservation of seats, as they do not at all deal with reservation The provisions of affirmative action including reservation in the matter of public employment are contained only under Article 16 of the Constitution of India. Thus, in view of Article 16(4), the State is duty bound to give preferential treatment to the backward class of citizens, who are not adequately represented. If the State finds that certain categories within the Scheduled Castes and Scheduled Tribes are not adequately represented and only the people belonging to a few of the categories are enjoying the entire benefit, the State cannot be denied its right to give more preferential treatment for such deprived categories within the larger circle of Scheduled Castes and Scheduled Tribes. If the State endeavours to ensure that the benefit of reservation percolates to the more underprivileged and less adequately represented sections from within the Scheduled Castes and Scheduled Tribes, nothing unconstitutional can be alleged behind it.
Applicability of “creamy layer” principle to Scheduled Castes and Scheduled Tribes
Even though in Indra Sawhney judgment168, the Bench applied the “means test” and the “creamy layer test”, and confined it to OBCs, but the SC in the present matter observed that if any member of the society attains the position of Indian Administrative Service (IAS), Indian Police Service (IPS) or any other All India Service, his status in the society rises and he is no longer socially disadvantaged. In such a situation his children are therefore, not entitled for the benefit of reservation, lest other disadvantaged members of that backward class may be deprived of the real benefit. Referring to the judgment of Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India169, it was held that State may, when social conditions warrant, justifiably restrict harijan benefits to the harijans amongst the harijans, and forbid the higher harijans from robbing the lower layer brethren. This principle was followed in the judgments of M. Nagaraj case170 and Jarnail Singh case171. Therefore, there is absolutely no bar on applying the “creamy layer test” to the Scheduled Castes and Scheduled Tribes.
Accordingly, it was held that criteria for exclusion of the creamy layer from the Scheduled Castes and Scheduled Tribes for the purpose of affirmative action applies for their sub-classification, though the criteria for the segregation may be different as applicable in the case of OBCs. The State was accordingly directed to evolve a policy for identifying the creamy layer even amongst the Scheduled Castes and Scheduled Tribes, who can be excluded from the benefit of affirmative action.
Concurring judgment of Justice Pankaj Mithal
Trinity of social, economical and political factors for progression
Concurring judgment started with the discussion that an ideal form of society is one which progresses upon merit. Every citizen has his own social, economical and political needs. In the Indian context, this trinity needs to be balanced to promote social justice. The need for provisions for reservation arose when the State was unable to achieve the social objective of bringing every citizen or class at par with each other.
The society today is deeply divided along lines of castes and the provision of reservation is a vital mechanism provided by the State for the upliftment of the marginalised communities often referred to as the “depressed class” of persons. While the policy of reservation has undermined the primacy of merit in the society, it also played an essential role in addressing societal needs and is imperative to maintain the balance within the trinity.
The Constitution of India was held to have originally provided for two categories of reservations, one for political purposes and other for social upliftment. Articles 330172 and 332173, aim to achieve political justice by providing reservation of seats to Scheduled Castes/Scheduled Tribes in Lok Sabha and State Legislature. On the other hand, Articles 15(3) and 16(4) address social justice by providing special provisions for women and children including reservation for backward classes of persons in the society. The term “depressed class” historically referred to untouchables, tribes living in the hilly areas or remote places. As the country progressed post-independence these “depressed classes” began to be identified on their vocations such as scavengers, leather workers, iron smiths, carpenters and more. Overtime they were officially classified as Scheduled Castes and Scheduled Tribes based on their occupation.
Amendments to Constitution with reference to judgments
The concurring judgment referred to various successive amendments that were made to overcome the hurdles in the implementation of the reservation policy. As much as 9 times the Constitution of India has been amended for implementing reservation in a fair and impartial manner to uplift the “depressed class” and to elevate them at par with the forward classes.
Many times these amendments were passed to undo the effect of the judgments of the Court and sometimes they were passed to carry out the directions or observations made by the Court in implementation of the reservation policy in a more fair and reasonable manner. For example, the passing of the Constitution (Eighty-Fifth Amendment) Act, 2002174, overturned the rulings in Union of India v. Virpal Singh Chauhan175 , Ajit Singh Januja v. State of Punjab176 , and Ajit Singh (II) v. State of Punjab177 , modified Article 16(4-A) to include consequential seniority for Scheduled Caste/Scheduled Tribe employees. It not only accelerated the promotion but consequential seniority as well to the reserved category.
Backward class Commissions by the Central Government and State Government
After the steps taken to achieve political and social equality there was a concern upon implications of such policies and required a fair assessment of the needs and provide recommendations to uplift the “depressed classes”. The State Government and Central Government set up several Commissions in the post-independence period to provide recommendations at all levels. Some of the major Commissions are as follows:
(A) The Backward Class Commission, established in 1953 under chairmanship of Kaka Saheb Kalelkar, aimed to address the backwardness of various classes in India. It recommended treating all women as a “backward class”, reserving 70% of seats in technical and professional institutions for backward class students; and providing reservation to the backward classes in government services and local bodies i.e. 25% in Class I, 33.5% in Class II, and 40% in Classes III and IV. Despite its detailed report and an expenditure of about Rs 5 crores in today’s worth, the recommendations were never debated in Parliament.
(B) The 2nd Backward Class Commission, popularly known as B.P. Mandal Commission, was constituted on 1-1-1979, in order to investigate the conditions of Socially and Educationally Backward Classes, recommending the criteria for defining such classes, and propose measures for their advancement and upliftment. Based on the 1961 census, the Commissions identified 3743 classes as Other Backward Classes (OBCs), with 52% of the population classified as OBCs and 22.5% as Scheduled Castes and Scheduled Tribes. The Government while accepting the recommendations of the Commissions introduced 27% reservation for OBCs which were Socially and Educationally Backward Classes in public sector and Government jobs, with 22.5% reservation to Scheduled Castes/ Scheduled Tribes as well. The Government while making such provisions adhered to the 50% cap on reservations set by the SC in M.R. Balaji case178. The validity of this reservation was later upheld in Indra Sawhney judgment179.
(C) In 2006, the GoI set up the Justice Usha Mehra Commission to examine the sub-categorisation of Scheduled Castes in Andhra Pradesh. Later, in 2007, the Central Government established another Commission, chaired by Justice G. Rohini, to evaluate the equitable distribution of reservation benefits among OBCs and formulate a mechanism for their sub-categorisation.
Similarly, several Central as well as State level Commissions have been set up to study and report about the improvements and shortcomings of earlier policies and also provide recommendations for framing new policies for the upliftment of the depressed and backward classes of the society in a fair and reasonable manner.
Ramifications of reservations
The judgment states that tremendous efforts have been made by the States to promote the reservation policy in the name of social justice. It has not only burdened the legislature but also the judiciary at all levels, especially the High Courts and the SC. Enormous litigations have taken place in the last 75 years of independence.
According to the Concurring Opinion, if a robust reservation policy would have been in place with a vision of social upliftment of the real “depressed class” of the society then such precious time of judiciary as well as legislature could have been saved. The present policy of reservation is an impediment in the social, economical and political development of the country.
The judgment states that every kind of process of selection and appointment in the Government services and admission at higher level are being challenged before the courts. These litigations not only extend the period in which the vacancies are filled, but also disappoint those who are unconnected to the issue. Therefore, this will adversely affect the examiner government department who will suffer from low manpower and inefficiency for too long. This is all due to the non-visionary approach of the policy makers who are extending reservation policies since independence to handle the upliftment of the backward castes which has created more difficulties rather than benefiting the society. The society could have been benefited if the selection would have been made on the basis of merit.
In the past, pro-reservation and anti-reservation agitations have badly disturbed the peace and tranquility of the entire nation. The reservation policies have triggered widespread social unrest with noticeable agitations like the Anti-Mandal Commission protest in 1990 and All India Institute of Medical Sciences (Aiims) Students protest in 2006 against reservation in higher education.
The judgment further states that the reservation policy only focuses on higher education, admissions and appointments in government sector and completely ignores the lower-level education. The reach of the reservation does not cover the children at primary level of education or drop outs. Moreover, the policies have focussed more on caste rather than on the socio-economic conditions. The children who are not affluent or urbanised are not categorised in Scheduled Castes/Scheduled Tribes or OBCs and this as a result makes them the “most backward of the backwards”. The generation who in their earlier years have faced such depression does not benefit of reservation and such cases make it difficult for them to come out of their socio-economic conditions.
The judgment critiques the reservation system for neglecting foundational issues like primary education as there is high drop-out rates among marginalised communities preventing many from reaching levels where reservation benefits could have been exercised. It also states that the Right to Education Act, 2009 have been proved to be a “very weak legislation” and that the target of Directive Principle of State Policy to provide compulsory primary education to all children within a period of 10 years could not have been achieved even after 77 years of Independence.
The judgment suggests that to bring about equality and development of all the Government should examine and come up with a better option because till date it has failed to achieve those objectives for which it was initially made. The Government till now has used caste, rather than class, to implement and provide benefits from reservation policy and that has become the reason for social and economical differentiation that has arrived in these backward classes. Therefore, those who are really in need of upliftment are not getting the benefit of these policies and those who are affluent in the society are practically enjoying the status of the forward classes among the people of those backward classes.
Casteless society: Varna system to Caste system
The judgment clearly states that there was no existence of any such caste system in primitive India. The Constitution other than giving the President the power to notify certain entities as Scheduled Castes vide Article 341, does not recognise any caste and to the contrary promotes a casteless society. It referred to Bhagavad Gita in which Lord Krishna has categorised humans into 4 varnas, Brahmins, Kshatriyas, Vaishyas and Shudras according to their nature, talents and abilities. Such a system existed to bring out the best in every person.
It referred to Skanda Purana which states that everyone is born as a Shudras i.e. to work and every human elevates himself through his own strengths and talents. The distribution should be according to their qualities and nature, instead of birth. Thus, to be Brahmin, Kshatriya, Vaishya or Shudra one need not to be born in the respective class but should acquire or have the quality and talents of that class.
According to the varna system, no one is considered lower or higher, rather it is preached that everyone is equal. It states that the varnas are interchangeable and that through his Karma any human can change his varna category. The categorisation did not decide on the basis of birth but with the passage of time the concept of varna system was exploited and converted into caste system. Those who intended to divide the society on the basis of discrimination and equality preached it. Thus, misconstruction of the varna system as a caste system was a social defect that crept in with time and the categorisation became rigid and birth based, therefore making it “dysfunctional”. The judgment exemplifies the efforts of Mahatma Gandhi who strenuously sought to eliminate the malpractices related with caste system while referring to the oppressed classes as Harijans (people of God) and worked tirelessly for their upliftment in the society. Which was once given to appease the downtrodden class, now cannot be taken back. Thus, in reference to reservation policy, it was rightly stated that, “Each concession once made, just goes on swelling like a raisin/balloon”.
Reservation as a medium of facility
Reservation is only a medium of uplifting the “depressed classes” and getting them the privilege in government institutions, admissions and appointments. The judgment highlighted that the reservation policy which was introduced as a means to ensure quality and provide necessary opportunity to the marginalised groups has the effect of reviving casteism in the society. Therefore, from the legal and historical perspectives the reservation has become a vested interest rather than a transitional measure.
Referring to the judgments of K.C. Vasanth Kumar Mehta v. State of Karnataka180 and Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India181, it was held that Scheduled Castes/Scheduled Tribes and OBCs simply deserve equality with the other forward classes of people and this objective will be achieved when the requirement of such policy can be done away with. Justice O. Chinnappa Reddy in K.C. Vasantha Kumar case182 said:
33. they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of rights and not of philanthropy. They ask for parity and not charity.
The judgment referred to the letter dated 27-6-1961 written by Pandit Jawahar Lal Nehru where he laid emphasis upon helping citizens on economic considerations and not on caste basis. He believed that for upliftment of the “depressed class”, the reservation is not a permanent solution. He wrote “I want my country to be a first-class country in everything. The moment we encourage the second-rate, we are lost”.
Conclusion
Since independence, the reservation policy has continued to be in existence through the efforts of the organs of the State. To achieve political equality, social equality got adversely affected. Caste being the only basis for reservation, the country has strayed away from moving forward on merit basis. The policy which was originally framed to uplift the “depressed classes” has now become an impediment for efficiency in the government departments. Despite all these observations, the only tool for upliftment of the “depressed class” is reservation and till the Government comes up with a better solution it is imperative to uplift the backward of the backwards through reservation and for this purpose such classification has become the order of the day.
The majority has rightly answered the core issue that such classification of the SC is constitutionally permissible for the purpose of reservation, he also clearly opined that this Court in Indra Sawhney judgment183 never intended to limit the application of sub-classification to the other backward classes only. If persons in a class are not similarly situated, it can be further classified and such sub-classification of a class would not be violative of Article 14 of the Constitution. There is no violation of Article 341(2) of the Constitution while sub-classifying the Scheduled Castes as by such sub-classification no exclusion from the list of any caste is taking place.
The concurring judgment also endorsed the applicability of the principle of “creamy layer” to Scheduled Caste/Scheduled Tribe whilst providing reservation. When a member of a backward class becomes an IAS or an IPS or any other officer of the All India Service, then the status of his family improves in the society but still his children get full benefits of reservation policy. This states that the reservation policy is providing benefit to those also who have today as a class have acquired a higher status and attained equality in the forward class and certainly their children would not be treated as depressed, downtrodden or backward in any manner. Thus, the State was directed to frame policy to weed out socially, economically and educationally advanced sections of the Scheduled Castes/Scheduled Tribes from the ambit of reservation, so that this benefit could only be confined to one generation only. to take steps for weeding out.
The judgment while agreeing with the separate opinions authored by Chief Justice and Justice Gavai, summarised its conclusions as:
Firstly, a fresh relook is required to be made by the State upon evolving other methods for uplifting the “depressed classes” of persons belonging to OBCs and Scheduled Caste/Scheduled Tribe communities. So long as a new method is evolved or adopted, the present policy of reservation to be continued and sub-classification of Scheduled Castes/Scheduled Tribes is permissible in law for the purpose of reservation
Secondly, that there was no caste system in the Constitution regime to begin with and till date the Constitution of India does not promote such caste system. The country needs to move in the direction of being a casteless society. This will allow the policymakers to formulate any facility or privilege for the promotion of the above categories of persons on a totally different criteria. Then the policy of upliftment will be based upon, other than the caste, on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural).
Thirdly, the benefits of reservation need to be restricted to one generation only because if the family has taken the advantage once, it has already come into the forward class and has achieved social equality. When the member of the depressed class has benefitted once then reservation has achieved its objective to bring that person to forward class. Therefore, the benefits of reservation should not be logically available to the second generation.
Lastly, a periodical exercise to be undertaken by the State authority to collect statistics, maintain record and examine it for the purpose of exclusion of the class of persons who have taken advantage of reservation and have raised their status.
Dissenting view of Justice Bela Trivedi
The dissenting view started with the quote of Justice William O. Douglas of the Supreme Court of the United States, as also Justice O.W. Holmes, both of whom felt the necessity to express dissent supported by their own reasons, a precious right available under the constitutional set up to the Judge. The dissenting view framed the following questions of law for its consideration and to be answered below:
(i) Whether the law laid down by the Five-Judge Bench in E.V. Chinnaiah judgment184 could have been doubted and referred to the larger Bench by the Bench of three Judges, without recording any cogent reasons for their disagreement with the said decision in E.V. Chinnaiah judgment185, more particularly when the said decision held the field for a long period of fifteen years?
(ii) Whether the States should be permitted to tinker with or vary the Presidential List specifying the “Scheduled Castes” as notified under clause (1) of Article 341, by sub-classifying or sub-dividing or regrouping the castes conglomerated in the said List, under the guise of providing reservation for the weaker of the weakest, and thereby commit the breach of the mandate contained in clause (2) of Article 341?
(iii) Whether the decision in E.V. Chinnaiah judgment186 is required to be revisited in view of certain observations made by the nine-Judge Bench in Indra Sawhney judgment187 concerning the Other Backward Class?
Propriety of the reference to the larger Bench, without any cogent reasons for disagreement
The reference in the present matter arose out of order passed by the 3-Judges Bench referring the matter to the 7-Judges Bench in 2020. The reference order was found to be without any reasons, much less cogent reasons, explicating as to why the three learned Judges could not agree with E.V. Chinnaiah judgment188.
Referring to the Constitution Bench judgments in Pradip Chandra Parija v. Pramod Chandra Patnaik189 and Maganlal ChhaganLal case190 it was stated that whenever references are made by smaller Benches to larger Benches, reasons must be set out appropriately as to why the Bench of smaller strength is not agreeing with the earlier judgment. Once substantial judicial time and resources have been spent on adjudication of any issue by a Constitution Bench, the same should not be dilated again by being referred to the larger Bench through a routine or cryptically worded reference order by a smaller Bench, in a casual or cavalier manner. Referring further to the judgment of Keshav Mills Co. Ltd. v. CIT191 it was held that certainty in the law is an essential ingredient of the rule of law, which gets considerably eroded if views expressed in earlier cases are lightly overruled. It introduces confusion which must be consistently avoided. Also, judicial discipline and proprietary developed over the years warrant that decision of larger Bench should be followed by the smaller Bench and a Bench of smaller strength cannot refer any earlier decision to a larger Bench till and until it is found to be manifestly wrong. The dissenting view on the first issue, therefore held that reference of E.V. Chinnaiah judgment192 by a 3-Judge Bench to the larger Bench in 2020 for reconsideration, without assigning any reasons was inappropriate and against the well settled doctrines of precedents and stare decisis.
Whether it is permissible for the States to tinker or vary the Presidential List notified under Article 341 or Article 342 of the Constitution of India.
The dissenting view held that though it is desirable to give a broad and generous construction to the constitutional provisions, however, whilst doing so, the rule of “plain meaning” or “literal interpretation” should not be given a go by and must be treated as “the primary rule”.
Aforesaid view was also taken by the two different Constitution Benches in GVK Industries Ltd. v. CIT193 and Jaishri Laxmanrao Patil v. State of Maharashtra194. “Literal construction” is the safest harbour for any constitutional interpreter, unless the language is contradictory or ambiguous or leads really to absurd results.
Whilst referring extensively to the Constituent Assembly Debates, especially the address of Dr B.R. Ambedkar and other members of the Drafting Committee, the Court inferred that Constitution makers always intended the List notified by the President under Article 321195 to be the final and unalterable List. This List deemed certain entities of castes, tribes, persons, troops, etc. to be Scheduled Castes and Scheduled Tribes for the purpose of privileges defined for them specifically under Constitution of India. The only limitation on this presidential notification was that once the notification has been issued, any elimination, variation or addition in the list could be made only and only by the Parliament and not by the President. Referring to the judgments of B. Basavalingappa v. D. Munichinnappa196 and Bhaiya Lal v. Harikishan Singh197 it was held that the plain language and literal meaning of Article 341 implies that notification issued under Article 341(1) cannot be varied by any subsequent notification, except by law made by the Parliament, which alone is competent (by making a law) to include or exclude any caste or tribe from the list of Scheduled Castes/Scheduled Tribes. The solemn purpose behind keeping the notified list as final and absolute was to keep away disputes touching whether a caste/tribe is a Scheduled Caste/Scheduled Tribe for the purposes of the Constitution of India. By this corollary, therefore none except the Parliament was competent even to modify, tinker or disturb the details of various Scheduled Castes provided in the notification.
Referring to the judgment of Bir Singh v. Delhi Jal Board198 it was stated that when it is the Parliament only which by law can include, vary, modify or exclude from the list of Scheduled Caste the various entities so specified in the notification by the President, then it is final and absolute for all purposes and none else has the authority to tinker or modify the same.
Etymology and special status of Scheduled Castes and the extent of affirmative action permissible under the Constitution of India for them
The origin of Scheduled Castes, as notified under Article 341(1) was intended to be treated as different from castes with a special categorisation. The term “depressed classes” as used by the researchers for the pre-independence Hindu community in the country, which developed the deprived practice of untouchability, cannot be treated as synonymous with “backward classes”. Since the members of Scheduled Castes were drawn from different castes, races, tribes and socially and educationally backward groups, the etymological, evolutionary history and background of the nomenclature Scheduled Castes so notified under Articles 341 and 342 by the presidential orders make the Scheduled Castes a “homogenous class” in itself. Homogeneous because all the members of all the castes, races and tribes, drawn from various sources on the indicia of social and educational backwardness were deemed to be Scheduled Castes for the purposes of Constitution of India, being conferred with the benefits granted or reserved for them. There is no question of heterogeneity in the said category of Scheduled Castes. Referring to the Constitution Bench judgment of N.M. Thomas case199, wherein the majority interpreting the word “caste” under Article 16(2) held that Scheduled Castes are drawn from various sources, but they attain a completely new status by virtue of the presidential notification. Thus, once they attain a special status of Scheduled Castes, they all are grouped in the same compartment and cannot be treated differently, no variation, modification which can be done by any executive authority. The States cannot enact any legislation contrary to the powers of the Parliament, and that the source of such power is only and only Article 246200. None of the entries confer any power on the State to rationalise the reservations by sub-classifying or sub-dividing the castes enumerated in the List notified under Article 341. In the absence therefore, of any executive or legislative powers conferred in any of the lists of 7th Schedule, the States are therefore not competent to divide/subdivide/sub-classify the castes, races or tribes from amongst the Scheduled Castes nor can they give any preferential treatment by reserving a quota for any particular caste, race or tribe. This would certainly amount to tinkering with or varying the notification issued by the President under Article 341, a course which is completely impermissible for the State Government.
The executive power cannot be exercised by the State, where it does not possess the competence to exercise its legislative power. As held above, since the State is incompetent to enact any legislation, for tinkering or modifying the Presidential List, the executive action also gets limited to the said extent.
Whether E.V. Chinnaiah judgment requires reconsiderations or needs revisitation, in view of Indra Sawhney judgment concerning OBCs
The dissenting view on this issue dealt with the primary contention of the petitioner’s that since sub-classification was permitted amongst the OBCs, therefore by the very same principle and rationale it was permissible also for the Scheduled Castes and Scheduled Tribes. Another contention was whether the “creamy layer principle” could be applied in the case of Scheduled Castes and Scheduled Tribes on the same rationale as interpreted in Indra Sawhney judgment201.
Referring to the judgment of Ashok Kumar Thakur v. Union of India202 the Court stated that the Constitution Bench clearly rejected the contention of applicability of “creamy layer principle” to the Scheduled Castes and Scheduled Tribes. Indra Sawhney judgment203 never intended to extend the principle of creamy layer beyond the OBCs, appreciating that Scheduled Castes and Scheduled Tribes notified under Article 341 are a specially categorised homogenous class. The dissenting view holds that in none of Indra Sawhney judgment204 or Jarnail Singh case205, the issue of sub-classification of Scheduled Castes and Scheduled Tribes in the context of Article 341 was ever raised or argued, nor was ever decided by the Benches concerned. Therefore, to rely upon the aforesaid judgments, whilst reconsidering or overruling E.V. Chinnaiah judgment206 is clearly erroneous.
Limits of affirmative action within the constitutional framework
Referring to the judgment of Supreme Court Bar Assn. v. Union of India207 the dissenting view judgment proceeds to hold that affirmative actions of the States have to be within the constitutional framework, lest the courts cannot ratify them. In the context of the interpretation accorded to Article 142, it was stated that powers by the SC cannot be used judicially to construct a new edifice where none existed earlier. The actions of the State even though well intentioned and affirmative in nature, if found violative of the specific provisions of the Constitution of India can never be validated or given a stamp of approval by the SC under Article 142. The implementation of the affirmative action policies must align with the constitutional and legal principles, particularly when they are targeted towards specially created and notified classes under the Constitution of India itself, one of them being the Scheduled Castes so notified under Article 341.
Accordingly, the dissenting view judgment held EVC judgment208 to be the correct law and confirmed the same while dissenting from the view of the majority.
*Practising Advocate at the Supreme Court of India and Delhi High Court.
**Practising Advocate at the Supreme Court of India and Associate at SVS Attorneys, Delhi.
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