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Q. Which Is The Recent Pronouncement, In Which A Constitution Bench Has Considered The Validity Of Maratha Reservation And 102nd Constitution Amendment ?
A.RELEVANT CASE LAW:
Dr JAISHREE LAXMANRAO PATIL V THE CHIEF MINISTER AND OTHERS LL 2021 SC 243 (569 page judgment)
Coram : Justices L Nageswarar Rao, Hemant Gupta and S Ravindra Bhat, S Abdul Nazeer, Ashok Bhushan
Q. Whether 102nd Constitutional Amendment ( brought to give Constitutional status to National Backward Classes Commission by inserting Article 338-B &342-A) Has Abrogated The Power Of States To Identify "Socially And Educationally Backward Classes(SEBCs)".
A. BY 3:2, YES, (MINORITY VIEW IN NEGATIVE BY S Abdul Nazeer, Ashok Bhushan)
Note: The Minority comprising Justices Ashok Bhushan & S Abdul Nazeer held that the effect of the amendment was only related to the power of Centre to identify SEBCs for the Central List. Interestingly Attorney General for India has also expressed the minority view. More surprisingly even Parliamentary Committee also supports this.
Note: Central government has filed a review petition against this judgment on 14.05.2021, which is still pending.
(1).QUESTIONS FRAMED BY C.B. ALONG WITH ANSWER AS READY RECKONER:
Q.1. Whether Judgment In Case Of INDRA SAWHNEY V. UNION OF INDIA [1992 Suppl. (3) SCC 217] Needs To Be Referred To Larger Bench Or Require Re-Look By The Larger Bench In The Light Of Subsequent Constitutional Amendments, Judgments And Changed Social Dynamics Of The Society Etc?
A. NO
Q.2. Whether Maharashtra State Reservation (of Seats For Admission In Educational Institutions In The State And For Appointments In The Public Services And Posts Under The State) For Socially And Educationally Backward Classes (SEBC) Act, 2018 As Amended In 2019 Granting 12% And 13% Reservation For Maratha Community In Addition To 50% Social Reservation Is Covered By Exceptional Circumstances As Contemplated By Constitution Bench In Indra Sawhney ’s Case?
Q.3. Whether The State Government On The Strength Of Maharashtra State Backward Commission Report Chaired By M.C. Gaikwad Has Made Out A Case Of Existence Of Extraordinary Situation And Exceptional Circumstances In The State To Fall Within The Exception Carved Out In The Judgment Of Indra Sawhney ?
Q.4. Whether The Constitution One Hundred And Second Amendment Deprives The State Legislature Of Its Power To Enact A Legislation Determining The Socially And Economically Backward Classes And Conferring The Benefits On The Said Community Under Its Enabling Power?
A. BY 3:2, YES. (REVIEW PENDING)
Q.5. Whether, States Power To Legislate In Relation To “any Backward Class” Under Articles 15(4) And 16(4) Is Anyway Abridged By Article 342(A) Read With Article 366(26C) Of The Constitution Of India?
Q.6. Whether, Article 342A Of The Constitution Abrogates States Power To Legislate Or Classify In Respect Of “any Backward Class Of Citizens” And Thereby Affects The Federal Policy / Structure Of The Constitution Of India?
A. NO (THIS PARADOX IS EXPLAINED IN DETAL BY US, HOWEVER, FOR THIS PARADOX, NOW, C.G. HAS FILED REVIEW PETITION AND THE SAME IS STILL PENDING).
Q. Whether After The Constitution 102nd Amendment, The States Have Any Power Left To Identify Socially And Educationally Backward Classes?
A. AS PER 3:2 , NO (REVIEW PENDING)
REASON:
The Constitution 102nd Amendment had brought change in the regime already in existence for backward class to fall it in line with Articles 341 and 342 of the Constitution.
Article 366(26C) says that the phrase SEBCs “means” those backward classes which are so deemed under Article 342A, for the purposes of this Constitution.
The expression “for the purposes of this Constitution” is used in Articles 15(4) and 16(4), 338B, 342A and in other Articles of the Constitution of India.
In view of Article 342A the SEBCs are those who are specified by the President by public notification for the purposes of a State or Union Territory under sub-clause(1) of Article 342A.
Article 342A being analogous to Articles 341 and 342 must be interpreted exactly in the same manner.
CONCLUSION:
The Parliament inserted phrase “Central List” in clause (2) of Article 342A only to emphasize the fact that after Constitution 102nd Amendment, the only list that shall be drawn for the purposes of SEBCs is the Central List drawn by the President.
Q. When 102nd Constitutional Amendment Has Abrogated The Power Of States To Identify "Socially And Educationally Backward Classes(SEBCs), How It Is Held As Constitutional ? Discuss The Paradox, If Any?
Q. After The Introduction Of Articles 338-B And 342-A To The Constitution, Which Has The Final Say In Regard To Inclusion Or Exclusion (or Modification Of Lists) Of SEBCs ?
A. The majority judgment held that after the introduction of Articles 338B and 342A to the Constitution "the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is
thereafter, in case of modification or exclusion from the lists initially published,
Q. Whether Alteration Of The Content Of State Legislative Power In An Oblique And Peripheral Manner Would Constitute A Violation Of The Concept Of Federalism Or Basic Structure Of The Constitution ?
Q. The Minority Comprising Justices Ashok Bhushan & S Abdul Nazeer Held That The Effect Of The Amendment Was Only Related To The Power Of Centre To Identify SEBCs For The Central List . What Reasoning Was Given By Minority?
A. The expression 'Central List' used in sub-clause (2) of Article 342A has been used for the PURPOSE AND OBJECT which cannot be ignored nor lost sight.
The definition clause under Article 366(26C) has to be read contextually with Article 366(26C) which is referred under Article 366(2C) itself.
Thus, the definition is relevant in the context of 'Central List' and the definition governing to list prepared by the State which was not under contemplation in Article 342A.
Sub-clause (9) of Article 338B uses the expression ‘consultation’. It is true that the expression ‘consultation’ is not to be read as concurrence but the ‘consultation’ Has To Be Effective And Meaningful.
The object of consultation is that ‘consultee’ shall place the relevant material before person from whom ‘consultation’ is asked for and Advice And Opinion Given By Consulting Authority Shall Guide the authority who has asked for consultation.
MINORITY VIEW: It is, thus, clear as sunlight that Parliamentary intention discernible from Select Committee report and statement of Minister of Social Justice and Empowerment is that the intention of the Parliament for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State
ATTORNEY GENERAL FOR INDIA KK Venugopal told the bench that the 102nd Constitution Amendment did not affect the right of the States to identify OBCs. The AG said that the amendment only related to identification of OBCs in central lists.
SOLICITOR GENERAL OF INDIA Tushar Mehra told the bench that the Union Government was supporting the Maratha quota.
(Note: Review Is Pending On This Confusion And Difference In Opinion)
(2)BACKGROUND FACTS.
CONSISTENTLY MARATHA IS RECOGNISED AS FORWRAD COMMUNITY:
Thus, the first Backward Classes Commission did not find Maratha as other backward class community in the State of Bombay.
POST INDRA SAWHNEY(1992) DEVELOPMENT:
3. The Maharashtra SOBCC on 03.06.2013 rejected the request of the State Government to review the findings recorded by the State OBC Commission in its report dated 25.07.2008 holding the Maratha caste as forward community.
HEIGHTS OF POPULIST DEMOCRACY:
FIRST TIME RANE COMMITTEE HAS RECOGNISED MARATHA AS BACKWARD COMMUNITY
POPULIST DEMOCRACY INITIATED SERIES OF LITIGATION
3. The GOVERNMENT RESOLUTION dated 15.07.2014 specifying the Maratha community as the community socially and economically backward entitled for 16% reservation was challenged.
4. Maharashtra Legislature passed the Act, 2014 on 23.12.2014 which received the assent of the Governor on 09.01.2015, and was deemed to have come into force with effect from 09.07.2014.
In Writ Petition (C)No. 3151 of 2014 and other connected matters the Division Bench of the Bombay High Court passed an order on 07.04.2015 Staying The Implementation of the provisions of the Act 1 of 2015 providing 16% reservation to Maratha.
The interim order, however, directed that appointment to 16% reservation for Maratha under Act 1 of 2015 in the advertisements already issued shall be made from open merit candidates till final disposal On 30.06.2017 the State Government made a reference to State Backward Classes Commission to submit a report on the facts and the observation made in the reference to the Government regarding Maratha.
Q. Whether It Is Legitimate To Presume Progressive Advancement Of All Citizens On Every Front i.e. Social,Economic And Educational ? If Yes, Then Why?
A. YES
In RAM SINGH Vs. UNION OF INDIA AND OTHERS CASE, (JAT RESERVATION CASE)
IT WAS HELD THAT this is because one may legitimately presume progressive advancement of all citizens on every front i.e. social,economic and educational.
Any other view would amount to RETROGRADE GOVERNANCE.
Yet, surprisingly the facts that stare at us indicate a governmental affirmation of such NEGATIVE GOVERNANCE (IN POPULIST FORM OF DEMOCRAY) inasmuch as decade old decisions NOT TO TREAT THE JATS AS BACKWARD, arrived at on due consideration of the existing ground realities, have been REOPENED, in spite of perceptible all-round development of the nation. This is the basic FALLACY INHERENT in the impugned governmental decision that has been challenged in the present proceedings.
When More People Aspire For BACKWARDNESS Instead Of Forwardness , the COUNTRY ITSELF STAGNATES which situation is not in accord with constitutional objectives.
To change the 50% limit is to have a society which is NOT FOUNDED ON EQUALITY but BASED ON CASTE-RULE.
Q. In Which Judgment It Was Held That When Committee/Commission (LIKE HERE GAEKWAD COMMISSION) Has Carried Out An Exercise For Collecting Data, The Court Must Be Circumspect In Exercising The Power Of Judicial Review To Re-Evaluate The Factual Material On Record?
A.
Q. In Which Case, It Was Held That The Court Should Show Due Deference To The Opinion Of The State ?
Q. Whether Its Mean That The Opinion Formed Is Beyond Judicial Scrutiny Altogether ?
Q. What Is The Scope And Reach Of Judicial Scrutiny In Matters Within The Subjective Satisfaction Of The Executive?
A. This Is Extensively Stated In
BARIUM CHEMICALS LTD.V.COMPANY LAW BOARD, AIR 1967 SC 295
HOW PRESENT CASE & IMPUGNED AMENDMENT COMES INTO OPERATION ?
5. On 15.11.2018, the SBCC submitted its report on social and educational and economic status of Maratha. The Commission Recommended For Declaring Maratha Caste Of Citizens As Social And Economic Backward Class Of Citizens With Inadequate Representation in services.
PRECEDENTS DISCUSSED & REFERRED IN THIS CASE:
had laid down that reservation under Article 15(4) shall be less than 50 percent which principle finds its approval in
THE QUESTIONS WHICH WERE RAISED AND ANSWERED IN THIS CASE:
Q. In A Case Where There Are Several Opinions, How To Cull Out The Decision Of The Court ?
A. The Constitution Bench of the SC in
The Constitution Bench laid down that OPINION WHICH EMBODIES THE GREATEST COMMON MEASURES OF THE AGREEMENT Among The Bench Is To Be Accepted The Decision Of The Court.
CONCLUSION: Thus, for culling out the decision of the Court in a case where there are several opinions, on which there is greatest common measure of agreement is the decision of the Court.
Q. On The Basis Of Above Test, Find Out What Is The Greatest Common Measures Of The Agreement Between The Judges With Regard To The Reservation To The Extent Of 50% In The Judgment Of Indra Sawhney ?
A. Justice B.P. Jeevan Reddy for himself, M.H. Kania, CJ, M.N.Venkatachaliah, A.M. Ahmadi, JJ., has elaborately dealt with the extent of the reservation under Article 16(4).
Thus, the majority opinion, the ratio of judgment of Indra Sawhney as expressed by the majority is one which is expressed in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy.
Q. What Is Greatest Common Measure Of Agreement?
A. THUS, Greatest Common Measure of agreement IN SIX SEPARATE JUDGMENTS delivered in Indra Sawhney is that:
(i) Reservation under Article 16(4) should not exceed 50%.
(ii)For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised.
Q. Whether What Is True In Regard To Article 15(4) Is Equally True In Article 16(4).
The Constitution Bench also after noticing the judgment of the SC in
observed that what is true in regard to Article 15(4) is equally true in Article 16(4).
Constitution Bench judgments of the SC in
a Constitution Bench of the SC had occasion to examine the CARRY FORWARD RULE in a recruitment under the Union of India. the SC had noticed M.R. Balaji and held that what was laid down in M.R. Balaji would apply in the above case.
Q. Whether In M. Nagaraj Or Ashok Kumar Thakur, The Constitution Bench Judgments Has Laid Down Any Proposition To The Effect That If A State Wants To Exceed 50% Reservation, Then It Is Required To Base Its Decision On The Quantifiable Data?
Constitution Bench judgment of the SC in
The judgment of Indra Sawhney has been followed by the SC in a number of cases including at least in the following four Constitution Bench judgments:
The Constitution Bench judgment of the SC in
reiterated the principle as referred and reiterated that outer limit is 50% as specified in Indra Sawhney's case.
Q. Since Balaji Was Not A Case Arising Under Article 16(4) But What Is Said About Article 15(4). Whether Still Balaji Ration Qua A.15(4) Is Equally Good And Valid For The Purposes Of Article 16(4) ?
HELD THAT although Balaji was not a case arising under Article 16(4) but what is said about Article 15(4) came to be accepted as equally good and valid for the purposes of Article 16(4).
The 50 percent principle which was initially spoken of in Balaji having been approved in Indra Sawhney. We failed to see as to how prepositions laid down by the SC in Indra Sawhney shall not be applicable for Article 15.
REASON: It has been laid down in Indra Sawhney that expression “Backward Class” used in Article 16(4) is wider that the expression “Socially and Educationally Backward Class” used in Article 15(5).
Q. As Per T.M.A. Pai Case, Aided Minority Educational Institutions Are Entitled To Preferably Admit Their Community Candidate But Is It True That On The Basis Of Balaji/Indira Swahney Cases, Intake Should Not Be More Than 50 Percent? If No, Then Why?
A. NO, INTAKE CAN BE MORE THAN 50%.
REASONS:
Eleven-Judge Bench of the SC in
Q. Can There Be Any Reservation In Unaided Minority Schools Referred In Article 30(1) ?
RELEVANT CASE LAW:
(supra), it is clear that there can be no reservation in unaided minority schools referred in Article 30(1).
50 percent ceiling as put by the SC in ST. STEPHEN’S COLLEGE case was struck off by T.M.A. PAI FOUNDATION case to give effect to content and meaning of Article 30.
The striking of the cap of 50 percent with regard to minority institutions is an entirely different context and can have no bearing with regard to 50 percent cap which has been approved in the reservation under Article 16(4) in the Indra Sawhey’s case
Q. Whether Constitutional 77th And 81st Amendment Acts Have The Effect Of Undoing In Part The Judgment Of Indra Sawhney Which Necessitates Revisiting Of The Judgment ?
Rather the above Constitutional Amendment makes it very clear that ceiling of 50 percent “has now received Constitutional recognition.”
Ceiling of 50 percent is ceiling which was approved by the SC in Indra Sawhney’s case, thus, the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney’s case .
Q. 103rd Constitutional Amendment, Parliament Has Inserted Article 15(6) And 16(6), Whereby 10 % Reservation Is Granted To Economically Weaker Section. Whether In View Of The 10% Reservation As Mandated By 103rd Constitutional Amendment, Cap of 50 % Reservation As Laid Down By Indra Sawhney Is Breached ?
Q. Whether 50 Percent Limit For Reservation Prescribed In Indra Sawhney Is No Longer A Good Law After 103rd Constitutional Amendment Which Inserted Article 15(6) And Article 16(6) Into The Constitution ?
A. Since the Constitutional Validity of 103rd Constitutional Amendment has been referred to a larger Bench in W.P. (Civil) No.55 of 2019, JANHIT ABHIYAN VERSUS UNION OF INDIA, we refrain ourselves from making any observation regarding effect and consequence of 103rd Constitutional Amendment.
Q. Whether Extraordinary Situations As Indicated In Paragraph 810 Are Illustrative Or Are Exhaustive ?
A. It is only illustrative.
Q. In Which Case, Constitution (85th Amendment) Act, 2001 Inserting Article 16(4A) Was Challenged ?
A. M.NAGARAJ was a case where Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4A) was challenged on the ground that the said provision is unconstitutional and violative of basic structure.
Constitution Bench held that majority opinion in Indra Sawhney has held that rule of 50% was a binding rule and not a mere rule of prudence.
The Constitution Bench observed:
If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335.
Q. Can You Discuss The Meaning Of Extra-Ordinary Situations As Illustrated By Indra Sawhney Case?
A. In Paragraph 810, Indra Sawhney Case has given illustrations regarding certain extra-ordinary situations.
The Exact Words Used In Paragraph 810 Are:
Q. Whether The Test As Laid Down In Paragraph 810 Of Indira Swahney Case Is Only Geographical Test, As Given As Illustration ?
A. NO, IT ALSO COVERS SOCIAL TEST
It is true that in Indra Sawhney the expression used was “far flung and remote areas”; but the SOCIAL TEST which was a part of the same sentence stated “the Population Inhabiting Those Areas Might, On Account Of Their Being Out Of The Main Stream Of National Life And In View Of Conditions Peculiar To And Characteristical To Them”.
Q. Whether Maratha Passes The Social Test?
One of the social conditions in paragraph 810 is that BEING WITHIN THE MAIN STREAM OF NATIONAL LIFE, the case of Maratha does not satisfy the extra-ordinary situations as indicated in paragraph 810 of Indra Sawhney.
The Marathas are in the main stream of the National Life. It is not even disputed that Marathas are politically dominant caste.
Q. What Is The Significance Of The Expression 'Central List' Used In Sub-Clause (2) Of Article 342A ?
Q. Sub-Clause (9) Of Article 338B Uses The Expression ‘Consultation’. What Is The Significance Of That ?
A. It is true that the expression ‘consultation’ is not to be read as concurrence but the ‘consultation’ has to be effective and meaningful.
The object of consultation is that ‘consultee’ shall place the relevant material before person from whom ‘consultation’ is asked for and advice and opinion given by consulting authority shall guide the authority who has asked for consultation.
It is, thus, clear as sun light that Parliamentary intention discernible from SELECT COMMITTEE REPORT and statement of Minister of Social Justice and Empowerment is that the intention of the Parliament for bringing Constitutional amendment was NOT TO TAKE AWAY THE POWER OF THE STATE TO IDENTIFY BACKWARD CLASS IN THE STATE.
Q. Whether The Constitution 102nd Amendment Violates Any Basic Feature Of The Constitution As U/A. 368 CoI Was Not Ratified By The Necessary Majority Of The State?
The Parliament Never Intended To Take The Rights Of The State regarding identification of backward classes.
The Constitution 102nd Amendment was not covered by Proviso to Article 368 sub-clause(2), hence, the same did not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment cannot also be accepted.
The High Court in the impugned judgment has correctly interpreted the Constitution 102 nd Amendment and opinion of the High Court that the Constitution 102nd Amendment does not take away the legislative competence of Maharashtra Legislature is correct and we approve the same.
TWO MAIN ISSUES:
Q.1 Whether Without Following The Procedure Indicated In The Proviso To Article 368(2), i.e. Seeking Approval Or Ratification Of At Least One Half Of The Legislative Assemblies Of All The States, The Amendment Is Void ?
Direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution requires ratification.
Thus, the insertion of substantive provisions That Might Impact Future Legislation By The State In An Indirect Or Oblique Manner would not necessarily fall afoul of the Constitution for not complying with the procedure spelt out in the proviso to Article 368(2).
Q. 2. Whether The Amendment Has The Effect Of Violating The Basic Or Essential Features So Far As It Impacts The Federal Structure Of The Constitution Is Concerned?
SQ. Whether, Article 342-A Of The Constitution Abrogates States Power To Legislate Or Classify In Respect Of "Any Backward Class Of Citizens" And Thereby Affects The Federal Policy / Structure Of The Constitution Of India?
A. NO.
A. To answer the second issue, the Apex Court referred to two judgments
SC uphold the 102nd Constitutional Amendment.
HELD THAT:
However Clarified That Alteration of the content of state legislative power in an OBLIQUE AND PERIPHERAL MANNER would not constitute a violation of the concept of federalism or basic structure of the Constitution.
ONLY IF the amendment TAKES AWAY the VERY ESSENCE OF FEDERALISM
or effectively Divests the FEDERAL CONTENT of the constitution,
and Denudes the states of their effective POWER TO LEGISLATE or frame executive policies (co-extensive with legislative power)
that the amendment would Take Away an essential feature or violate the BASIC STRUCTURE of the Constitution.
Majority 3:2, upheld the Constitutional Amendment , despite holding that the it takes away power of States to identify EBCs, ATLEAST IN CENTRAL LIST.
Applying such a benchmark, the SC is of the opinion that the power of identification of SEBCs hitherto exercised by the states
and now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342A does not in any manner violate the essential features or basic structure of the Constitution.
The 102nd Amendment is also not contrary to or violative of proviso to Article 368 (2) of the Constitution of India.
As a result, it is held that the writ petition is without merit; it is dismissed.
Q. Is Their Any Need To Revisit 50% Ceiling Limit Laid Down By Indira Sawhney Case ?
There is no need to revisit the 50% ceiling limit on reservation laid down by the 9-judge bench decision in the Indira Sawhney case.
Observing that the Indira Sawhney dictum has been followed in many judgments and has received acceptance, the Court reiterated that position.
Q. Where Gaekwad Commission Went Wrong?
A. State is required for providing reservation under Article 16(4) is not based on proportionate representation but on ADEQUATE REPRESENTATION.
But the Gaikwad commission proceeded on the basis of PROPORTIONATE REPRESENTATION.
Q. Whether The 102nd Constitution Amendment, Which Introduced The National Commission For Backward Classes, Abrogated The Power Of States To Identify OBCs?
A. YES, ATLEAST IN CETRAL LIST.
Q. Are There Exceptional Circumstances Justifying The 16% Quota For Marathas, Exceeding The 50% Reservation Limit In Maharashtra ?
Q. Whether Affirmative Action Is Limited Only To Reservations ?
Q. Whether State Government Has The Power To Declare A Class As Socially And Economically Backward After The Constitution (102nd) Amendment ?
NOTE: HOWEVER, MINORITY VIEW:The 102nd Constitution Amendment did not affect the right of the States to identify OBCs. The amendment only related to identification of OBCs in central lists.
Q. Is Providing Reservation For Advancement Of Any Socially And Educationally Backward Class In Public Services Is Not The Only Means And Method For Improving The Welfare Of Backward Class ? If Not, Then What The Govt. Should Do ?
A. No
Q. Whether The Gaikwad Commission Or The High Court Have Made Out Any Situation For Exceeding The Ceiling Of 50% Reservation For Marathas ?
A. NO, SC finds there are no extraordinary circumstances for exceeding the ceiling.
Q. Whether The Judgment Has Retrospective Operation ?
The bench clarified that the judgment will not affect the PG Medical Admissions under Maratha quota made till 09.09.2020.
SC found that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation.
The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.
SC thus conclude that the Act, 2018 as amended in 2019, granting separate reservation for Maratha community has not made out any exceptional circumstances to exceed the ceiling of 50 percent reservation.
Q. Where The Gaikwad Commission As Well As The State Govt. Has Failed ?
A. The Court held that there need not representation proportionate to the population of the community. What is required by the State for providing reservation under Article 16(4) is Not Proportionate Representation But Adequate Representation.
BUT THE GAIKWAD COMMISSION PROCEEDED ON THE BASIS OF PROPORTIONATE REPRESENTATION.
(ABHIPEDIA'S VIEW: DETAILED CRITICAL ANALYSIS SUGGEST THAT THE SPECIOUS REASONING OF GAEKWAD COMMISSION, IN COMING WITH ABSURD CONCLUSION, IS THE RESULT OF BIAS MINDSET OF PLIABLE & COMMITTED BABUGIRI, WITH DHARTRASHTRA MINDSET.)
The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission's report and consequential legislation are UNSUSTAINABLE.
We thus hold that Maratha class was not entitled for any reservation under Article 16(4) and grant of reservation under Article 16(4) is UNCONSTITUTIONAL AND CANNOT BE SUSTAINED.
Q. Why Marathas Are Declared By SC As Not Socially Or Educationally Backward Caste?
A. EMPIRICAL STUDY & EXTRAPOLATION OF DATA:
The Court said that the FACTS AND FIGURES which were obtained by the Commission itself indicate that students of Maratha community have succeeded in open competition and got admissions in all the streams including Engineering, Medical Graduation and Post-Graduation Courses and their percentage is not negligible.
The Court also noted that in IAS, IPS and IFS ,percentage of Maratha out of the posts filled from open category candidates comes to 15.52, 27.85 and17.97 percentage respectively, "which is substantial representation of Marathas in prestigious Central services".
Q. Whether Mere Fact That The Percentage Of Marathas In Engineering, Medical, PG Courses, Higher Academic Posts And Central Services Are Not Proportionate To Their Population Is Indicative Of Their Social And Economic Backwardness?
Data and facts which have been collected by the Commission noted above clearly indicate that Marathas are neither socially nor educationally backward and the conclusion recorded by the Gaikwad Commission on the basis of its marking system, indicator and marking is not sufficient to conclude that Marathas are socially and educationally backward.
Q. Why As Per SC There Is No Need To Revisit 50% Ceiling Limit Laid Down By Indira Sawhney Case ?
A. The bench held that there was no need to revisit the 50% ceiling limit on reservation laid down by the 9-judge bench decision in the Indira Sawhney case.
Observing that the Indira Sawhney dictum has been followed in many judgments and has received acceptance, the Court reiterated that position on the principle of stare decisis.
Q. Suppose in the given case,
Now matter is before you as SC. Decide.
A. After elaborately referring to statistics regarding the representation of Marathas in government jobs, the Apex Court in JAISHREE LAXMAN RAO PATIL Case, held that Marathas are adequately represented in services.
The above representation of Marathas in public services in Grade-A, B, C and D are adequate and satisfactory. One community bagging such number of posts in public services is a matter of pride for the community and its representation in no manner can be said to not adequate in public services. The Constitutional pre-condition that backward class is not adequately represented is not fulfilled.
State Government has formed opinion on the basis of the above figures submitted by the Gaikwad Commission. The opinion of the State Government being based on the report, not fulfilling the Constitutional requirement for granting reservation to Maratha community becomes unsustainable.
Q. What Were The Impugned Findings Of Bombay High Court Judgment Passed In June 2019, And Problem With The Socially And Educationally Backward Classes (SEBC) Act, 2018, For Which It Were Successfully Challenged Before SC ?
A. It violated the principles laid in the case of INDIRA SAWHNEY V. UNION OF INDIA (1992) as per which the Apex Court capped the reservation limit at 50%.
IMPUGNED FINDINGS OF BOM. HC:
Bombay High Court, while upholding the Maratha quota, held that 16% Reservation Is Not Justifiable and ruled that Reservation Should Not Exceed 12% In Employment And 13% in education as recommended by the State Backward Commission.
On September 9, 2020, a three-judge Bench of the Supreme Court referred the cases to a larger bench to determine the issue Whether State Government Has The Power To Declare A Class As Socially And Economically Backward After The Constitution (102nd) Amendment?
While referring the case to larger bench, the 3-judge bench also stayed the operation of Maratha reservations.
Q. What Happened To The Maharashtra SEBC Act 2018?
A. The bench struck down the Maharashtra SEBC Act 2018 TO THE EXTENT it held Marathas as a socially and economically backward class as violating the principles of equality.
The bench struck down the reservation given to Marathas in job and education.
Q. Why Challenge To 102nd Constitution Amendment Rejected By SC?
A. The bench also dismissed the petitions challenging the 102nd Constitution Amendment, which introduced the National Commission for Backward Classes.
The bench rejected the argument that the 102nd Constitution amendment violated the basic structure of the Constitution.
CONCLUSION/FATE OF THE WRIT BEFORE SC/GIST : The constitutional Precondition As Mandated By Article 16(4) Being Not Fulfilled with regard to Maratha class, both the Gaikwad Commission's report and consequential legislation are unsustainable.
SC thus hold that Maratha class was not entitled for any reservation under Article 16(4); and thus further hold that grant of reservation under Article 16(4) is unconstitutional and cannot be sustained .
CONCLUSION: A Constitution Bench of the Supreme Court has STRUCK DOWN the Maratha quota in excess of 50% ceiling limit as unconstitutional .
The Court UNANIMOUSLY HELD THAT there were no exceptional circumstances justifying the grant of reservation to Marathas in excess of 50% ceiling limit as a Socially and Economically Backward Class.
Neither the GAIKWAD COMMISSION nor the HIGH COURT have made out any situation for exceeding the ceiling of 50% reservation for Marathas.
Therefore, we find there are NO EXTRAORDINARY CIRCUMSTANCES for exceeding the ceiling.
RESULT OF WRIT:
The bench struck down the Maharashtra SEBC Act 2018
TO THE EXTENT it held Marathas as a socially and economically backward class as VIOLATING THE PRINCIPLES OF EQUALITY.
The bench STRUCK DOWN THE RESERVATION GIVEN TO MARATHAS IN JOB AND EDUCATION .
CLARIFICATION:
NO RETROSPECTIVE EFFECT
ONLY PROSPECTIVE EFFECT
However, the bench clarified that the judgment will not affect the PG Medical Admissions under Maratha quota made till 09.09.2020 .
Q. Is The Provision For Reservation Is A Temporary Crutch ?
ASHOKA KUMAR THAKUR vs. UNION OF INDIA 2008(6) SCC 1
NOTE:Such crutch by unnecessary prolonged use,should not become a permanent liability.
Q. Whether In The Era Of LPG Is There Need To Explore More Avenues For Providing Opportunities For The Weaker Sections Of The Society In View Of The Emergence Of The Private Sector ?
In view of the PRIVATISATION AND LIBERALISATION of the economy public employment is not sufficient to cater the needs of all.
More avenues for providing opportunities to members of the weaker sections of the society and backward class to develop skills for employment not necessary the public service.
Q. What Will Happen If The Reservation Goes Above 50% Limit ?
A. Then, it will be SLIPPERY SLOPE, the POLITICAL PRESSURE,
make it hardly to reduce the same.
Thus,answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.
Q. Do Elaborate Discussion On "Wider Possibilities" Of Affirmative Action ?
A. The term "special provision" in Article 15 (4) is of wider import, than reservations.
ABHIPEDIA'S CONCLUSION:
“we Can Satisfy The Need, Not Greed;
State Ought To Avoid Such Populism With All Chutzpah, As In Long Run, It Will Be Rather Counter-Productive To The Weaker Sections Itself, Along With Society As A Whole.”
“Let Us Learn From Bangladesh, Which Has Recently Done Away With Reservation. Learn From Scandinavia & Israel, Invest In Quality Health & Education, And Make It Accessible To All & Sundry Through Universal Basic Income. Last but not the least, let us learn form ongoing pandemic CORONA, which has exposed our misplaced priorities, dearth of quality research scholars in medical field including doctors etc; due to compromise with the spirit of Article 335, (MUST WATCH OUR VIDEO ON “PYCQAS” ON ABHIPEDIA) which was though uphold by Judiciary but assassinated by Political Executives for Vote-Bank Politics & Polemics!!!”
SUMMARY:
BEFORE PROCEEDING FURTHER, LET US HAVE QUICK GLANCE OF THE 569 PAGE LENGHTY JUDGMENT, AS RAEDY RECKONER/QUICK REVISION, IN OUR
COFFE WITH APHIPEDIA “RAPID FIRE” SESSION
Coram : Justices L Nageswarar Rao, Hemant Gupta and S Ravindra Bhat S Abdul Nazeer, Ashok Bhushan
Q. Why The C.B. Was Constituted?
A. Constitution Bench has been constituted to consider questions of seminal importance relating to contours and extent of special provisions for the advancement of socially and educationally backward class (SEBC) of citizens as contemplated under Article 15(4) and contours and extent of provisions of reservation in favour of the backward class citizens under Article 16(4) of the Constitution of India.
The challenge/interpretation of the Constitution (102nd Amendment) Act, 2018 is also come up for consideration.
NOTE:The request to refer the judgment of Nagaraj has been refused by subsequent Constitution Bench judgment of the SC in JARNAIL SINGH AND OTHERS VS. LACHHMI NARAIN GUPTA AND OTHERS, 2018(10) SCC 396.
Q. How The SC Has Dealt With The Matter & Why ?
A. The Constitution Bench of the Supreme Court has struck down the Maratha quota as unconstitutional, because it was in excess of 50% ceiling limit.
The Court unanimously held that there were no exceptional circumstances justifying the grant of reservation to Marathas in excess of 50% ceiling limit as a Socially and Economically Backward Class.
Q. Who Has Filed Writ Petition Challenging Maratha Quota ?
A. Writ Petition was filed by SHIV SANGRAM , a political party based in Maharashtra .
Q. If So, Whether It Is Unconstitutional?
A. NO, AS UNANIMOUSLY HOLD BY C.B.
Q. Which New Articles Are Inserted By The Constitution Vide 102nd Amendment ?
A. Articles 338 sub-clause (10), new Article 338B, Article 342A and 366(26C) are inserted.
Q. Why Article 342A Was Brought By Constitution 102nd Amendment ?
A. To give constitutional status to National Backward Classes Commission(NBCC);
and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.
Q. Whether Gaikwad Commission Report Has Made Out A Case Of EXTRA-ORDINARY SITUATION For Grant Of Separate Reservation To Maratha Community Exceeding 50% Limit ?
Q. Whether The Data Of Marathas In Public Employment As Found Out By Gaikwad Commission Makes Out Cases For Grant Of Reservation Under Article 16(4) Of The Constitution Of India To Maratha Community ?
Q. Whether The Act,2018 As Amended In 2019 Granting Separate Reservation For Maratha Community By Exceeding The Ceiling Limit Of 50% Makes Out EXCEPTIONAL CIRCUMSTANCES As Per The Judgment Of Indra Sawhney ?
Q. What Is Greatest Common Measure Of Agreement w.r.t. Reservation ?
Q. How Many Separate Judgments Were Delivered In Indra Sawhney Case( Mandal Case)?
SQ. Is The Rule Of Cap Of 50% In Reservation Is Absolute ?
A. The GREATEST COMMON MEASURE of agreement in (6) six separate judgments delivered in Indra Sawhney is:
1.
(i)Reservation under Article 16(4) Should Not Exceed 50%.
(ii)For exceeding reservation beyond 50%, Extra-Ordinary Circumstances As Indicated In Paragraph 810 Of Justice Jeevan Reddy should exist for which extreme caution is to be exercised.
SQ. Which Was The First Case By SC Which Las Laid Down 50% Cap In Reservation?
A. BALAJI case
2.The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. 50% is reasonable and it is to attain the object of equality. To change the 50% limit is to have a society which is not founded on equality but based on caste rule.
3. That the cap on percentage of reservation as has been laid down by Constitution Bench in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4). The cap on percentage is to achieve principle of equality and with the object to strike a balance which cannot be said to be arbitrary or unreasonable.
SQ. Whether Reservation For Advancement Of Any Socially And Educationally Backward Class In Public Services Is The Only Means And Method For Improving The Welfare Of Backward Class?
4. Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The State ought to bring other measures including providing educational facilities to the members of backward class free of cost giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant.
SQ. Whether Constitution Bench In Indra Sawhney Findings That 50% Is Upper Limit Of Reservation Under Article 16(4)(5) Is Binding On State?
A. YES.
There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.
When the Constitution Bench in Indra Sawhney held that 50% is upper limit of reservation under Article 16(4), it is the law which is binding under Article 141 and to be implemented.
SQ. Whether Indra Sawhney Is Also Fully Applicable In Reference To Article 15(4) Of The Constitution Of India ?
SQ. Does The Setting Aside Of 50% Ceiling By Eleven-Judge Bench In T.M.A. Pai Foundation Case As Was Laid Down By St. Stephen’s Case I.E. 50% Ceiling In Admission In Aided Minority Instructions Has Any Bearing On The Principle Of 50% Ceiling Laid Down By Indra Sawhney With Respect To Reservation? If No, When Why ?
5) The setting aside of 50% ceiling by eleven-Judge Bench in T.M.A. Pai Foundation case as was laid down by St. Stephen’s case i.e.50% ceiling in admission in aided Minority Instructions has no bearing on the principle of 50% ceiling laid down by Indra Sawhney with respect to reservation.
The judgment of T.M.A. Pai was in reference to rights of minority under Article 30 and is not relevant for Reservation under Articles 16(4) and 15(4) of the Constitution.
SQ. Vide Which Constitution Amendment, Ceiling Of 50% Has Now Received Constitutional Recognition?
A. 81st/A.16-4B
(6)The Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”.
Q. Whether Extraordinary Situations Indicated In Paragraph 810 Are Exhaustive Or Illustrative ?
A. ILLUSTRATIVE
Extraordinary situations indicated in paragraph 810 were ONLY ILLUSTRATIVE and cannot be said to be exhaustive.
SQ. Whether Paragraph 810 Provided Only A Geographical Test?
The use of expression “on being out of the main stream of national life”, is a SOCIAL TEST, which also needs to be fulfilled for a case to be covered by exception.
Q. Whether Constitution Bench Judgment Of The SC In Indra Sawhney Needs To Be Revisited Or Referred To A Larger Bench For Consideration. If Not Then Why?
What was held by the Constitution Bench in Indra Sawhney on the relevance and significance of the principle of stare decisis clearly binds us. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of the SC. The Constitution Bench judgment of the SC in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration.
Q. Whether Constitution Bench In M. Nagaraj Contains Any Ratio That Ceiling Of 50%Reservation May Be Exceeded By Showing Quantifiable Contemporary Data Relating To Backwardness ?
The Constitution Bench in M. Nagaraj does not contain any ratio that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness.
NOTE :The Commission has completely misread the ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached.
Q. Whether Article 16(4A) Is An Enabling Provision?
Q. Whether State Is Bound To Make Reservation For Scheduled Castes And Scheduled Tribe In The Matters Of Promotion ? If No Then Why?
Q. If Any State Wish To Exercise Their Discretion And Make Such Provision, Whether The State Has To Collect Quantifiable Data Showing Backwardness Of The Class And Inadequacy Of Representation, as observed by M.NAGARAJ Case ?
Constitution Bench in paragraph 123 held that provision of Article 16(4A) is an enabling provision and State is not bound to make reservation for Scheduled Castes and Scheduled Tribe in the matters of promotion and however, if they wish to exercise their discretion and make such provision,the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation.
Q. The Commission And The High Court Found Existence Of The Extra-Ordinary Situations With Regard To Exceeding 50% Ceiling In Respect To Grant Of Separate Reservation To Maratha Because The Population Of Backward Class Is 80% And Reservation Limit Is Only 50%, Containing The Maratha In Pre-Existing Reservation For OBC Shall Not Be Justice To Them. Do you agree?
Q. Whether These Circumstances Is Covered Under The Para Meters Indicated In Indra Sawhney’s Case As Extra-Ordinary Circumstance To Breach 50% Ceiling?
A.NO
There is no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 per cent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16.
Q. Whether The Exceeding Of Ceiling Limit Without There Being Any Extra-Ordinary Circumstances Clearly Violates Article 14 And 16 Of The Constitution Which Makes The Enactment Ultra Vires ?
TEST OF THE CONSTITUTIONAL SCRUTINY.
The measures taken under Article 15(4) and 16(4) can be examined as to whether they violate any constitutional principle, and are in conformity with the rights under Article 14, 15 and 16 of the Constitution. The scrutiny of measures taken by the State, either executive or legislative, thus, has to pass test of the constitutional scrutiny.
Q. What Is The Meaning Of The Word ‘adequate’?
A. The word ‘adequate’ is a relative term used in relation to representation of different caste and communities in public employment.
Q. What Is Objective Of Article 16(4) ?
A. The objective of Article 16(4) is that backward class should also be put in main stream to enable to share power of the State by affirmative action. To be part of public service, as accepted by the Society of today, is to attain social status and play a role in governance.
Q. What Is The Effect Of Sub-Clause(9) Of Article 338B ?
A. That the consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per sub-clause(9) of Article 338B which mandatory requirement cannot be by-passed by any State while the State takes any major policy decision.
HIRA VS RERA
Q. Recently Vide Which Judgment, SC Has Struck Down The West Bengal Housing Industry Regulation Act, 2017( WBHIRA), Holding It To Be Unconstitutional In View Of The 2017 Real Estate (Regulation And Development) Act (RERA) Which Is The Central Legislation On The Identical Subject-Matter ?
A. RELEVANT CASE LAW:
FORUM FOR PEOPLES COLLECTIVE ... VS THE STATE OF WEST BENGAL on 4 May, 2021 SC
Supreme Court struck down the West Bengal Housing Industry Regulation Act, 2017( WBHIRA), holding it to be unconstitutional in view of the 2017 Real Estate (Regulation and Development) Act (RERA) which is the central legislation on the identical subject-matter.
However, with a view to prevent any chaos in the real estate industry in the state, the Court in exercise of its powers under Article 142, clarified that all sanctions and registrations previously granted under the HIRA prior to the date of this judgment shall continue to prevail.
The Court also added that the striking down of the 2017 State Act would not revive the 1993 Act which was in force in the state for the regulation of promotion of construction as the same stood impliedly repealed by the enactment of the RERA.
The bench was pronouncing the judgment on the plea filed by the FORUM FOR PEOPLE'S COLLECTIVE EFFORTS, an umbrella home buyers association, challenging the Constitutional Validity Of West Bengal Housing Industry Regulation Act, 2017, which is more or less identical to the Centre's RERA.
RERA was in force before the state of West Bengal enacted HIRA.
Both HIRA & RERA were enacted to ensure better accountability to consumers and to promote and regulate the real estate sector.
95 to 98%, the WB HIRA is a complete copy-paste of the RERA,
but on a few aspects it is in DIRECT CONFLICT with RERA.
The DIFFERENCES INCLUDE
Q. When Despite The Field Being Occupied By The Central Law, Can The Impugned State Act,Which Was Neither Reserved For The Consideration Of The President Nor Was The Presidential Assent Obtained So As To Make It Valid Under Article 254(2), Be Constitutionally Valid?
It has been pointed out that despite the field being occupied by the 2016 Central law RERA, the impugned state Act, notified in June, 2018, was neither reserved for the consideration of the President nor was the Presidential assent obtained so as to make it valid under Article 254(2).
"Two fundamental features become evident on the comparison of the two statutes- that there is a SIGNIFICANT AND OVERWHELMING OVERLAPPING between the state law and the central Act, later having been BODILY LIFTED WORD-FOR-WORD by the state legislature.
Also, the state enactment does not complement the central law, it does not fortify the rights and remedies under the central Act, it does not contemplate any additions to the central law.
The state Act is identical to the central Act and Is An Attempt On The Part Of The State Government To Set Up A Parallel Mechanism Or Regime".
Q. What Entries In The Concurrent List Are Relevant On The Same Subject Matter?
A. The WB HIRA is on the same subject matter as the RERA and its statutory provisions, which are identical to the RERA, are also referable to Entries 6 and 7 in the Concurrent List.
Q. What Is Third Test Of Repugnancy ?
A. The state enactment attracts the THIRD TEST OF REPUGNANCY- where the state law is unconstitutional because it is on the identical subject matter as a law made by the parliament, whether prior or later in point of time.
This repugnancy ensues not because there is a conflict between the provisions of the two Acts but because once the Parliament has enacted a law, it is not open to do so, and in this case, bodily lift the provisions of the central law and enact them verbatim as a state law.
As this court has held in the case of INNOVATIVE INDUSTRIES(2017), A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject matter.
This need not be in the form of a direct conflict, where one says "do" and the other says "don't".
Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical.
"The WB HIRA purports to occupy the same subject matter as the Centre's RERA which is constitutionally impermissible and the state Act stands impliedly repealed.
Referring to section 88 of the RERA, the bench said that the Parliament does not preclude the states from enacting legislation on any cognate or allied subjects. "If any areas have been left out in the RERA, the state legislatures can provide for them by way of a cognate legislation so long as they deal with a subject which is incidental", noted the bench.?
"However, in the instant case, the state legislature encroaches upon the authority of the Parliament which has supremacy in so far as the concurrent list is concerned", ruled the bench.
The bench also found the HIRA to be in 'direct conflict' with the RERA- "The HIRA failed to incorporate valuable institutional safeguards to protect the home buyers. Not only is this a failure of the state legislature to incorporate statutory safeguards for real estate purchasers, but it brings the state law it in direct conflict with the RERA. The state legislature has transgressed the limitations on its powers"
?Background
Q. Can a state, in the name of cooperative federalism, enact a legislation under the Concurrent List to occupy the same field that the Parliament has occupied?
Q. Explain How An Inconsistency/Repugnancy May Result Between A State Act And A Central Law ?
A. "Repugnancy can be by way of a direct conflict, with the Parliament saying 'X' and the State saying 'X minus'.
Q. What Do You Understand By Occupied Field ?
A. Then, there is occupied field (Article 254(1); if there exists a Central law on a concurrent subject, then a State law cannot override it).
And then there is the case where the state enacts a law, not to supplement the Central law, but to do the exact same thing that the Parliament is doing by means of its law..."
Q. Can a state, in the name of cooperative federalism, by a legislation under the Concurrent List, occupy the same field that the Parliament has occupied?
It may be that states are resistant (to intervention by the Centre) in a field that has been historically occupied by them. But can they say, 'You enacted a law, now we will enact a similar law and enforce that and not yours'? Is that really permissible?
ANSWER IS A BIG NO.
NOTE: Justice Chandrachud had propounded an interesting theory as regards the purport of a state government in essentially re-enacting the provisions of a Central Act as a state legislation- if it could be to denude the Government of India of its authority under Article 256 over the state.
Q. What Is link between Article 162 & A.256 ?
A. ARTICLE 256 provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.?
If RERA was in force in West Bengal, the central government could issue directions to the state in exercise of its executive power. If the state government had not framed the requisite Rules under the Act, the central government could ask it to do so under Article 256. It could say that 'Otherwise, my legislation is not being enforced in your state.
If a Central law is in force in the state, the executive power of the Union of India, by virtue of Article 162, extends under Article 256 so as to instruct the state government and the state government is bound to comply.
If the state government has not formulated any Rules under the law, the central government can obligate it to do so under Article 256.?
Q. What Is The Significance Of The Proviso To Article 162 ?
A. The Proviso to Article 162 states that in any matter with respect to which the State Legislature and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power conferred by the Constitution or by any law made by Parliament upon the Union or its authorities)
The state government then cannot reduce the Act to a dead letter. "If there is a central law in force in a state, the Union of India, in exercise of its executive power under Article 256, can give directions to the state government for its enforcement. Then, the state cannot say, 'Enact the law, we won't make any rules to enforce it'.
Q. Is There Any Exception To Aforesaid Principles?
Where the state enacts a pari materia law under the Concurrent List, the Government of India has no such authority.?
The moment there ceases to be a central law, the Union of India has no such right.
Once the state enacts a pari materia law under the Concurrent List, the Government of India has no authority and it becomes the exclusive domain of the state.
If it is a state law, the central government cannot require such framing of the Rules.
EVIDENCE ACT,1872
Q. Whether Proviso 6 To Section 92 Of The Evidence Act Will Apply If A Document Is Straightforward, Without Any Ambiguity In Meaning ?
MANGALA WAMAN KARANDIKAR (D) TR. LRS VS.PRAKASH DAMODAR RANAD LL 2021 SC 247 (F.B.)
Section 92 of the Evidence Act bars giving oral evidence with respect to the contents of a written document.
However, Proviso 6 To Section 92 allows the admission of facts external to the document which shows in what manner the language of a document is related to existing facts.
The Supreme Court was considering an appeal in which the question was Whether The Agreement In The Case Should Be Interpreted As A License To RUN A BUSINESS Or A License To OCCUPY THE RENTED PREMISES In Which The Business Was Located.
Q. Discuss The Principles On Contractual Interpretation?
Q. What Is Difference Between Statutory Interpretation & Contractual Interpretation ?
A. At the outset before we analyse this case, we need to observe some principles on contractual interpretation.
Unlike a statutory interpretation, which is even more difficult due to assimilation of individual intention of law makers, contractual interpretation depends on the intentions expressed by the parties and dredging out the true meaning is an ‘iterative process’ for the Courts.
In any case, the first tool for interpreting, whether it be a law or contract IS TO READ THE SAME.
ANALYSIS OF IMPUGNED DOCUMENT on above principles:
Q. THE GIVEN CASE,
“2. For the last about 24 to 25 years, a stationary shop by the name Karandikar Brothers belonging to you of the stationary, note books and books is being run in the premises situated in City Survey no. 196/66 (New House No. 1643) at Sadashiv Peth, Pune. I request to you to give the said shop to me for running the same. Accordingly, you agreed for the same. Accordingly, an agreement was reached between us. The terms and conditions whereof are as follows:
A. The stationary shop · by name "Karandikar Brothers" belonging to you of the stationary materials which is situated in the premises described in Para 1 (a) above and in which the furniture etc. as described in Para l(b) above belonging to you is existing is being taken by me for conducting by an agreement for a period of two years beginning from 1st February 1963 to 31st January 1965.
B. The rent of the shop described in Para 1 (a) above is to be given by you only to the owner and I am not responsible therefor. I am to pay a royalty amount of Rs. 90/-(Rupees Ninety only) for taking the said shop for conducting, for every month which is to be paid before the 5th day of every month.”
ACT OF TRIAL COURT: DECREED THE SUIT
The Trial Court by Judgment dated 30.08.1988, decreed the Suit in favor of the appellant herein and held that
the PURPORT OF THE AGREEMENT WAS TO CREATE A TRANSACTION FOR SALE OF BUSINESS RATHER THAN TO RENT THE AFORESAID PREMISES TO THE RESPONDENT HEREIN. ….
Therefore, the Document Became Much Relevant, and it has got material importance. If the conditions as enumerated in this DOCUMENT EXH.33 are carefully scrutinized, it will become significant that the deceased plaintiff had the sole intention to hand over' the running business of the suit shop to the defendant. There had been no intention to create the leave and licence in respect of the suit premises. …. In the instant suit, the defendant has utterly failed to prove that the shop premises were given to him on licence basis. Therefore, NO QUESTION OF HIS TENANCY can arise at any time. …” (emphasis supplied)
4. Accordingly, the Trial Court Ordered The Respondent To Hand Over The Suit Property To The Appellant Herein Including The Furniture And Other Articles.
ACT OF AGGRIEVED RESPONDENT/APPELLANT:
5. Aggrieved by the Trial Court judgment, the Respondent filed an Appeal before the Court of Additional District Judge, Pune in Civil Appeal 1988.
ACT OF ADJ/SECOND APPELLATE COURT: APPEAL DISMISSED
On 29.07.1991, the Additional District Judge rendered a judgment dismissing the appeal filed by the Respondent herein. DISMISSED
Aggrieved by the dismissal the Respondent herein filed a Second Appeal before the High Court of Bombay in Second Appeal 1991.
ACT OF HIGH COURT/SECOND APPELLATE COURT: APPEAL ALLOWED
6. By impugned order dated 07.11.2009 the High Court of Bombay allowed the Second Appeal and set aside the Trial Court’s Order as well as the First Appellate Court’s Order and HELD THAT
THE RESPONDENT HAD ENTERED INTO A LICENSE AGREEMENT WHICH IS COVERED UNDER SECTION 15A OF THE BOMBAY RENT ACT.
Further the Court held that the Trial Court Did Not Have The Jurisdiction To Try The Cases Under The Bombay Rent Act, The Appropriate Court Should Have Been Small Causes Court established under the Provincial Small Causes Court Act.
The Second Appellate Court also observed on the merits of the case and held as under.
“22. Thus, considering the entirety of the case, in my view, BOTH THE COURTS BELOW HAVE INCORRECTLY INTERPRETED THE DOCUMENT and the surrounding circumstances which, in my view, indicate that the Parties Had In Fact Agreed That The Premises Were Transferred To The Appellant On A LEAVE AND LICENSE BASIS.” APPEAL ALLOWED
Aggrieved by the same, the appellant herein filed this appeal. DECIDE?
A. The impugned order of the High Court cannot be sustained, and is accordingly, set aside. The decree of the trial court is restored. The appeal is allowed .
RESPONDENT's CONTENTION- WHY SPECIOUS?
The debate therefore revolves around the question as to
Q. Whether The Agreement Of 7th February, 1963 Was A License To CONDUCT A BUSINESS In The Premises Or Was A License To RUN THE EXISTING BUSINESS Which Was Being Run By The Respondents In The Suit Premises?
Q. Does The Document Create An INTEREST IN THE PREMISES Or In The BUSINESS?
The High Court in order to answer the question utilized S.95 of the Evidence Act, which reads as under:
95. Evidence as to document unmeaning in reference to existing facts.—
When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
Illustration
A sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house of Howrah.
Aforesaid Section is part of Chapter VI, which deals with ‘OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE’ containing Section 91 to 100.
Section 92 reads as under:
92. EXCLUSION OF EVIDENCE OF ORAL AGREEMENT—
When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:…
PROVISO (6).—
Any fact may be proved which shows in what manner the language of a document is related to existing facts.
Q Whether S.95 Only Builds On The Proviso 6 Of S.92.?
A. Yes
REASONS, WHY HC DESPITE FRAMING RIGHT QUESTION OF LAW, HAS COME TO WRONG REASONING & ANALOGY:
It is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, then resort could be had to the proviso.
But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply.
In this regard, we may state that S.95 only builds on the proviso 6 of s.92.
If the contrary view is adopted as correct it would render s.92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself.
Such interpretation, provided by the High Court violates basic tenants of legal interpretation. [SEE. ROHITASH KUMAR VS OM PRAKASH SHARMA (2013) 11 SCC 451]
S.92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms.
If, as stated by the learned Judge, oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of s.92.
It could not be postulated that the legislature intended to nullify the object of s.92 by enacting exceptions to that section.
In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of ‘Karandikar Brothers’ by paying royalties of Rs. 90 per month.
Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language.
may not be out of context to note that the extension of the contract was on same conditions.
Q. If Documents/Lease Deed/Agreement Etc, Only Indicates Breach Rather Than Ambiguity In The Language Of Contract, Can S.95 Of Evidence Act Be Invoked?
On consideration of the matter, the High Court erred in appreciating the ambit of S.95, which led to consideration of evidence which only indicates breach rather than ambiguity in the language of contract.
The evidence also points that the license was created for continuation of existing business, rather than license/lease of shop premises.
If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties.
Q. Why In This Case Much Emphasis Can Not Be Given On The Receipt Of Payment, Which Mentions The Term ‘Rent Received’, As Pointed Out By Respondent?
A. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term ‘rent received’. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law.
Q. Whether In The Given Case, Jurisdiction Of The Trail Court Is Ousted ?
Moreover, the contention that the aforesaid situation is covered by the Bombay Rent Act is misplaced.
Once we have determined that the IMPUGNED AGREEMENT WAS A LICENSE FOR CONTINUING EXISTING BUSINESS, Bombay Rent Act does not cover such arrangements.
Therefore, the jurisdiction of the trail court is accordingly not ousted.
In light of the above, the impugned order of the High Court cannot be sustained, and is accordingly, set aside. The decree of the trial court is restored. The appeal is allowed .
Q. Whether Orders Framing Charges Or Refusing Discharge Are Interlocutory Or Final In Nature ?
A. Neither Interlocutory Nor Final In Nature .
SANJAY KUMAR RAI VS. STATE OF UTTAR PRADESH LL 2021 SC 246
Q. Whether Orders Framing Charges Or Refusing Discharge Are Affected By The Bar Of Section 397 (2) Of The Code Of Criminal Procedure ?
The bench has held that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of the Code of Criminal Procedure.
The Court observed thus while allowing appeal against the Allahabad High Court order which dismissed a Criminal Revision Petition against a Trial court order dismissing a discharge application.
The High Court was of the view that it lacked jurisdiction under Section 397 of Cr.P.C to interfere with CJM order. It relied on ASIAN RESURFACING OF ROAD AGENCY OVT. LTC. V CBI (2018) 16 SCC 299 to hold that interference in the order framing charges or refusing to discharge is called for in RAREST OF RARE CASE only to correct the patent error of jurisdiction.
Q. Does Citizens Have A Right To Know About What Transpires In The Course Of Judicial Proceedings ?
Q. In Which Recent Judgment SC Has Upheld Media's Freedom To Report Court Hearings?
TITLE :
ELECTION COMMISSION OF INDIA V MR VIJAYA BHASKAR LL 2021 SC 244
In a significant judgment, the Supreme Court on Thursday upheld the freedom of media to report the oral observations and discussions made by judges and lawyers during a court proceeding.
DB has held that freedom of speech and expression under Article 19(1)(a) extends to reporting judicial proceedings as well.
The bench was delivering its judgment in a petition filed by the Election Commission of India seeking to restrain media from reporting oral remarks made by judges, after the Madras High Court orally said that the ECI "Should Probably Be Booked For Murder" For Being "singularly Responsible For Covid Second Wave" By Allowing Election Rallies.
The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what transpires in the course of judicial proceedings.
WEEKLY UPDATES BY VARIOUS HCs IN THE FORM OF RELEVANT JUDGMENTs ARE COMING SOON......
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