9911796707
TMI Blog1997 (3) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... ular basis w.e.f. April 10, 1991 as temporary Chief Engineer by order dated November 7, 1994 and orders promoting Harbans Lal and others as Superintending Engineers. The Governor exercising the power under proviso to Article 309 of the Constitution made the Uttar Pradesh Service of Engineers (Public works Department) (Higher) Rules, 1990 effective from October 15, 1990 (for short, the 'Rules'). They came into force at once by operation of Rule 1(2). The services comprised thereunder are grouped as a Group 'A' posts, consisting of various posts. Under sub-rule (1) of Rule 4 which speaks of Cadre of the Service , the strength of the service and of each category of the posts shall be such as may be determined by the Government from time to time. Sub-Rule (2) gives power to determine the strength of service and of each category of posts until they are ordered to be varied. The posts of Executive Engineer (Civil), Executive Engineer (Electrical and Mechanical), Superintending Engineer (Civil), Superintending Engineer (Electrical and mechanical), Chief Engineer Level-II (Civil), Chief Engineer Level-II (Electrical and Mechanical), Chief Engineer Level-I (Civil), and E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government issued from time to time in that regard. By proceedings dated March 8, 1973, the Government had provided percentage in reservation for Dalits and Tribes @ 18% and 2% respectively in all services or posts to be filled in by promotion through process of selection either by direct recruitment or by competitive examination or limited department or by competitive examination or limited departmental examination . The said percentage has been increased by 21% for Dalits and retained 2% for the Tribes under the U.P. Service (reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short, the U.P. Act') that came into force with effect from December 11, 1993. It has provided for the first time reservation @ 27% to the Other Backward Classes, 1973 Rules provided that if sufficient number of suitable candidates belonging to Dalits and Tribes were not available against reserved vacancies at the time of selection and if the vacancies were required to be filled up in the public interest, general category employees could be appointed on ad hoc basis. It had to be so mentioned in their orders of appointment that the provision/appointments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly. thus, the Dalits and Tribes were to get reservation in promotion on all posts/services. By proceedings dated July 5, 1984, it was further amplified, vis-a-vis that these order referred to hereinbefore thus: The Government after reconsideration feels it necessary to clarify the process of preparation of separate eligibility lists in this regard . Rule 2 of the 1984 order provided that : The total vacancies for promotion on the basis of seniority subject to rejection of unfit arises in any department/office at any time shall be divided into general candidates and SC/ST candidates on the basis candidates on the basis of G.Os. issued from time to time for reservation in promotions for these special categories. Each category shall be prepared separately in the order of their inter se seniority for available vacancies for each category and selection have been done from such eligibility list for each category and selection have been done from such eligibility list for each category on the basis of seniority subject to rejection of unfit. A combined list shall be prepared after selection of candidates form each category according to their inter se seniority. For a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional. Under Article 145(5) of the Constitution, it does not constitute majority judgment. Having declared that the reservation in promotion as unconstitutional , it is void ab initio under Article 13(3) of the Constitution. It bears, thereby, no legal or constitutional existence. The promotion made to respondents 2 to 10 at all levels therefore, is unconstitutional. The operation of the unconstitutional direction cannot be postponed by prospective overruling of Rangachari's ratio. The judgment of Jeevan Reddy, J. concurred by Pandian, J. being minority judgment, cannot operate prospectively. Even if it assumed that it is a mojority judgment, it is inconsistent with and contrary to the constitutional scheme of the Articles 14 and 16 violating the fundamental rights of the appellants/petitioners and, therefore, the power under Article 142 of the Constitution cannot be exercised to curtail the fundamental rights guaranteed in Part III of the Constitution. There is a distinction between the conclusions and directions. Justice Pandian and Justice Sawant expressed their concurrence on the conclusions and not with directions given by Jeevan Reddy, j. The direction for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate Government to make suitable legislative amendments. In fact, the right to promotion is a facet of right to recruitment to a post or a office under the State. No express provision in required in this behalf in Article 16(1) or 16(4) of the Constitution. After the judgment in Mandal's case, however, the Constitution (77th Amendment) Act was enacted by the parliament which was come into force w.e.f. June 17, 1995 for which date Article 16 (4A) was brought into the Constitution. It provides that nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion of any class or classes of posts in the services under State in favour of Scheduled Castes and Scheduled Tribes which, in favour of Scheduled Castes and Scheduled Tribes which , in the opinion of the State, are not adequately represented i the services under the State . Thereby, the Parliament has re-manifested its policy that right to reservation in promotion is a part of constitutional scheme or public policy in order to accord socio-economic empowerment and dignity of person and status to the Dalits and Tribes. The right to reservation in promotion would be available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of providing reservation in promotion to Dalits and tribes would operate without any hiatus. The decision in R.K. Sabharwal Vs. State of Punjab [(1995) 2 SCC 745] by a Constitution Bench re- affirms that the decision in Mandal's case on promotion was by a majority. Obviously Sabharwal's ration had upheld the principle of reservation in promotions and applied running account theory put forth by the State to give practical content to equality in results applying the roster points earmarked for the Dalits and Tribes, apart from equal opportunity to them to compete with the general candidates for general posts. The employees from general sections and Dalits and Tribes are integrated in the roster system to harmonise the competing interests. The Dalits and Tribes Selected for promotion on merit in open competition are bot to be treated as part of reserved quota. That contemporaneous understanding of the operation of law is in accordance with the law laid in para 860(8) of Mandal's case. So, it is a valid direction. The reservation in promotions in all the services or posts under the State of Uttar Pradesh was in vogue from March 1973. The legislature of Uttar Pradesh re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servation in promotion would come to a stop. By constitution (77th Amendment) Act, 1995, the scheme of reservation in promotions in continued without any need to bring about amendment to the statutory rules wince Article 16(4A) itself provided constitutional operation of reservation in promotion obviating the necessity to amend all statutory rules. The Prospective operation of law for 5 years is consistent with the doctrine of stare decisis as the declaratory law becomes operative therefore. The ratio of Antule's case has no application. Therein, the appellant- Antule was meted out with a hostile discrimination denying him the normal trial and right of appeal and he was subjected to special trial by the High Court, depriving him of the statutory appeal violating his fundamental right to equality. Therefore, this Court had held that the direction given under Article 142 to constitute a separate Tribunal presided over by a High Court Judge was inconsistent with the fundamental right to equality guaranteed by Article 14. From that perspective, it was held therein that the exercise of power under Article 142 should be consistent with the constitutional scheme. In Golaknath vs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio in Rangachari's case would remain operative for a further period of five years. Exercise of the power of judicial review and power under Article 142 are the judicial tools given to this court to prevent injustice. By judicial craftsmanship, the directions came to be issued to elongate the constitutional and public policy of reservation in promotion, until appropriate amendments are brought on statute within five years. He cited instances of staying the operation of the judgement by the High Court, Pending grant of leave under Article 136. The decision to postpone the effect of Mandal's case is a legal policy as a part of the inherent power preserved in this Court by Article 142. This Court, by prospective operation of a statute or operation of a judgment has no sanctioned any unconstitutional scheme but intended to postpone the operation of the declaration of law to a future date. In sampath Kumar vs. Union of India [(1987) 1 SCC 124], this Court, with a view to void constitutional crisis in dispensation of service dispute between public servants and the appropriate Government or instrumentally, by the administrative Tribunals constituted under the Administrative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iety. Shri Parag Tripathi, in reply, contended that Article 145(5) requires that for a judgment to be majority judgment, concurrence of the majority learned Judges constituting the Bench is necessary. There was no need for four other learned Judges to express their concurrence with Jeevan Reddy, J. as they felt that the reservation in promotion is void from the inception, by operation of Article 13(2). Unless they agreed to the view expressed by Jeevan Reddy, J., it could not be a majority judgment. The Separate judgments of the learned judges are self-operative from the date of the judgment in the absence their express concurrence for prospective over- ruling of Rengachari ratio. The prospective over-ruling evolved under Article 142 is inconsistent with the ratio in Waman Rao's case which had held that an amendment to the Constitution violating the fundamental right, unless the Act receives protective umbrella of Schedule IX, is void from inception. The ratio in Mandal's case laid by Jeevan Reddy, J. and agreed to by other three Judges does not amount to a statutory law nor it receives any protective umbrella under Schedule IX by is one declared under Article 141. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying condition of service. Chances of promotion are not condition of service. In Ramchandra Shankar Deodhar v. State of Maharashtra [(1974) 1 SCC 317], a Constitution Bench had held that a rule which merely affects the changes of promotion does not amount to change in the conditions of service. In Syed Khalid Rizvi Ors. v. Union of India Ors [(1993) supp. 3 SCC 575] a Bench of three judges following the above ratio, with approval, had held at page 602 para 31, that no employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible in accordance with the law. In the light of this normal run of service Jurisprudence, the question emerges whether the right to promotion is a fundamental right and the direction of prospective operation of the decision is Mandal Judgment, after five years, violates equality enshrined in Articles 14 and 16(1) and is void under Article 13(2) of the Constitution? Right to reservation itself is a fundamental right under Article 16(1) as was laid in State of Kerala v. N.M. Thomas [1976 (2) SCC 310] which was reiterated in Mandal's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State in chapter XVI, by a special provision, enjoins the State that the claims of the members of the Dalits and the Tribes shall be taken into consideration consistently with the efficiency of administration in the making of the appointment to service and post in connection with the affairs of the Union of a State. In Comptroller Auditor General v. K.S. Jagannathan [A.I.R. 1987 SC 537 in para 21 and 23] a Bench of three judges had held that Article 335 is to be read with Article 46 which enjoins that the State shall promotes with special care the educational and economic interest of the weaker section, in particular, the Dalits and the Tribes and shall protect them from social injustice, Article 38 of the Constitution enjoins the State to secure and protect a social order in which justice, social, economic and political shall inform all the institutions of the national life. The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities , not only amongst individuals but also amongst groups of people residing different areas or engaged in different vacations. The Preamble o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect and operation of fundamental right of the citizens when the state action infringes the right of the individual. In D.T.C. case (supra) [(1991) supp. 1 SCC 600 at 750-51, paras 297 and at 298] it was held that: It is well settled constitutional law that different articles in the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible and incorporeal whole with possible overlapping with the subject matter of what is to be protected by its various provisions particularly the Fundamental Rights. ....The nature and content of the protection of the fundamental rights is measured not by the operation rights is measured not by the operation of the State action, must be adjudged in the light of its operation upon the rights of the individuals or group of the individual in all their dimensions. It is not the object of the authority making the law impairing the right of the citizen nor the form of action taken that determines the protection he can claim: it is the effect of the law and of the action upon the right which of the action upon the right which attra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the rules, regulations or instruction having statutory favour made thereunder. But the relevant provisions must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees the right to live which includes right to livelihood, to a many the assured tenure of service is the source, the deprivation thereof must be in accordance with the procedure prescribed by law conformable to the mandates of Articles 14 and 21 as be fair, just and reasonable nut not fanciful, oppressive or at vagary. The need for the fairness, justness or reasonableness of the procedure was elaborately considered in Maneka Gandhi case and it hardly needs reiteration. It would, therefore, be necessary to consider the effect of reservation in promotion to the Dalits and the Tribes vis-a-vis the employees belonging to the general categories; it is a balancing right to equality in results and adjusting the competing rights of all sections. In Ahmedabad St. Xaviers College Society Anr. v. State of Gujarat Anr. [(1975) 1 SCR 173 at 252] through a Bench of nine Judges, this Court Pointed out that to establish equality, it would require absolute identical treatment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons or inflicting handicaps on those more advantageously placed, in order to bring about reals equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections or the community on footing of equality with the stranger and more powerful sections so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence.: In Marri Chandra Shekhar Rao V/s. Dean, Seth G.S. Medical College ors. [(1990) 3 SCC 130 at 138] a Constitution Bench to which one of us, K. Ramaswamy, J. Was a member, had held in para 8 thus: Therefore, reservation in favour of Scheduled Castes and Scheduled Tribes for the purpose of advancement of socially and educationally backward citizens to make them equal with other segments of community in educational or job facilities is the mandate of the Constitution. Equality is the dictate of our Constitution. Article 14 ensures equality in its fullness to all our citizens. State is enjoined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equality of opportunity depends not merely on the absence of disparities but on the presence of abilities and opportunities. De jure equality must ultimately find its raison d'etre in de facto equality. State must, therefore, resort to protective discrimination for the purpose of making people, who factually unequal, equal in specific areas. It would, therefore, be necessary to take into account de facto inequality in which exists the society and to take affirmative action by giving preferences and making reservation in promotions in favour of the Dalits and Tribes or by inflicting handicaps on those more advantageously placed , in order to bring about equality, such affirmative action, though apparently discriminatory, is calculated to produce equality on a broader basis by eliminating de facto inequality and placing Dalits and Tribes on the footing of equality with non-tribal employees so as to enable them to enjoy equal opportunity and to unfold their full potentiality. Protective discrimination envisaged in Articles 16(4) and 16 (4-A) is the armour to establish the said equilibrium between equality in law and equality in results as a fact to the disadvantaged. The Principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easure adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in prof of the fact in issue. There can be no inferences unless there are objective facts, direct or circumstantial, from which the other fact which is sought to establish an be inferred. In some case, the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases, the inferences d not go beyond reasonable probability. It there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made. the method of inference fails and what is left is mere speculation or conjecture. Therefore, for an inference of proof that a fact in dispute has been hold established, there must be some material facts or circumstances on record form which such an inference could be drawn. In the absence of any issue and facts and proof thereof, the inference that reservation in promotion deteriorates the efficiency or administration remains only a conjecture or an opinion based on no evidence. As seen, it is constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s inhumanity to man in its most naked from he must come to India, the original home of racism and inequality. So the 'meri theory' beautifully suits its ruling class or caste . At page 10, he states that Scientist have identified tow forces which are perpetually and constantly at work to influence the character, growth and development of the features of every living being in the universe including animals and plants: (1) heredity and (2) environment. Each species products only its own species. Biology is funded on the cell theory. Cell live and die. At page 11, he states that 'Merit and efficiency' are not inherited. They are an acquired quality that has not reached the germ plasma. So, to say that a Brahmina's son alone is a Brahmin and hence has the 'merit' to become a temple priest (archaka) has no scientific basis. Some other influence acts in combination with heredity and that is environment. With right environment - food, education, free atmosphere-Untouchables can prove better than Brahmins . At page 12, he states that genetic factors only provide the potential for human development whereas it is the environmental factors that translate this inh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been appointed to the reserved posts and that the clear stream of efficiency will be polluted by the infiltration of the latter into the sacred precincts is a vicious assumption, typical of the superior approach of the elitists classes. There is neither statistical basis nor expert evidence to support these assumptions that efficiency will necessarily be impaired if reservation exceeds 50%, if reservation is carried forward or if reservation is extended to promotional posts. Arguments are advanced are opinion are expressed entirely on an ad hoc presumptive basis. The age long contempt with which the 'superior' or ' forward' castes have treated the 'inferior' or 'backward' castes is now transforming and crystallising itself into an unfair prejudice, conscious and subconscious, ever since the 'inferior' castes and classes started claiming their legitimate share of the cake, which naturally means, for the 'superior' castes, parting with a bit of it. Although in actual practice their virtual monopoly on elite occupations and post is hardly threatened. the forward casts are nevertheless increasingly afraid that they might loses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egree of efficiency required of a general medical practitioner. Similarly, no one will suggest that the decree of industry and intelligence expected of a candidate seeking admission to an ordinary arts degree course. We do not, therefore, means to say that efficiency is to be altogether discounted. All that we mean to say is that it cannot be permitted to be used as a camouflage to let the upper classes in its name and to monopolise the services, particularly the higher posts and the professional institutions. We are afraid we have to rid our minds of many cobwebs before we arrive at the core of the problem. The quest for our illusions, though not our faith. It is the dignity of man to pursue the quest for equality. It will be advantageous to quote at this juncture R.H. Tawney in his 'classic work Equality' where he says. The truth is that it is absurd and degrading for men to make much of their the members of a social groups where each would consider the other as his equal, not higher of lower, A society, which does not treat each of its members as equals, forfeits its right of being called a democracy. All are equal partners in the freedom. Every one of our ninety four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the promotion is based on the aforesaid principles. Even employees from Dalits or Tribes get promoted only on satisfying the above test. Appointment by promotion is a facet of recruitment to a service or cadre/grade/classes of posts. In fairness on the part of the appellants/Petitioners and their learned counsel, none impugned not alleged that the private respondents are not meritorious of inefficient. No such evidence is placed on record. The fundamental requisites to all employees are honesty, integrity and character, apart from hard work, dedication and willingness to apply assiduously to the responsibilities attached to the office or post and also inclination to achieve improved excellence. What Dalits and Tribe employees need is an opportunity and fair chance of promotion to higher posts and offices earmarked for them in the roster where they are not adequately represented. In clash of competing claims between general category employees on the one hand and Dalits and Tribes on the other, what the authorities need to take into consideration is the aforesaid factors and their service record with an objective and dispassionate assessment. When the authorities have a power c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In view of the commitment of the Government to protect the interests of the Scheduled Castes and the Scheduled Tribes, the Government have decided to continue the existing policy of reservation is promotion for the Scheduled castes and the Scheduled Tribes. To carry out this, it is necessary to amend article 16 of the of the Constitution by inserting a new clause (4A) in the said article to provide for reservation in promotion for the Scheduled Castes and Scheduled tribes. Lord Macnaughten in Vacher Sons Ltd. vs. Londan Society of Compositors [(1913) Ac 107 at 118] has laid that a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment . The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. The above principle was followed by this Court in the Bengal Immunity Company Ltd. vs. The State of Bihar Ors. [(1955) 2 SCR 603]. This Court in Shirt Sitaram Sugar Co. Ltd. Anr. V/s Union of India Ors. [(1990) 1 SCR 909 at 936 and 942] through a Constitution Bench, had held that legislative policy is beyond t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lasses of services under the State. In G.S.I.C. Karmachari Union Ors. V.S. Gujarat Small Industries Corp. Ors. {J] 1997 (1) SC 384] another Bench of three Judges has held that the question of retrospectivity of the policy does not arise; what is being done is to give effect to the constitutional policy of providing adequate representation to the members of Scheduled Castes and Scheduled Tribes in all classes of service or posts where they are not adequately represented. Therefore, the question of arbitrariness does not arise since it is part of the scheme of the Constitution. Unless adequate representation is given to the employees belonging to Scheduled Castes and Scheduled Tribes in promotions also, the adequacy of representation in all classes and grades of service, where there is no element of direct recruitment, cannot be achieved. Obviously, therefore, Article 16 (4-A) was brought in the Constitution by Constitution (77th Amendment) Act, after the majority judgment of this Court by a Bench of nine Judges in Indira Sawhney v/s. Union of India India Ors. [(1992) Supp. 3 SCC 210]. So, the policy of reservation is part of socio- economic justice enshrined in the Preamble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be struck by applying the egalitarian protective discrimination in favour of the Dalits and Tribes to give effect to the Constitutional goals. policy and objectives referred to hereinbefore. In R.K. Sabharwal's Ors. V/s. State of Punjab Ors. [(1995) 2 SCC 745], the Constitution Bench was called upon to consider whether the reservation in promotion as per the roster was correct in law and, therefore, constitutional and whether the employees belonging to Scheduled Castes have right to be considered for promotion in their own merits, if so, how they are required to be adjusted in the roster prescribed by the Government. The Constitution Bench has pointed out that when percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserved points, it has to be taken that the posts shown at the reserved points are to be filled from amongst the members of the reserved categories. The candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserved category candidates can compete for the non-reserved posts. In the event of their appointment to the said posts, In the event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment? In this connection, we may, at the outset, refer to Article 145 (5) of the Constitution. It postulates that (N)o judgment and no such opinion shall be delivered by the Supreme Court, save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment or opinion . It would, therefore, be manifest that unless majority Judges comprised in the Bench concur on the opinion or the decision, it would not be a judgment and no such opinion shall be delivered by the Supreme Court, In Mandal's case, on the question of reservation in promotion, eight of the nine Judges participated in the opinion. Of them, Jeevan Reddy, J. spoke for himself, Kania, C.J.I. and Venkatachaliah, J. as he then was. Pandian and Sawant. JJ. also greed with them. There is a considerable debate on Micro Lexicon Surgery conducted by the learned counsel for the appellants/petitioners drawing a distinction between conclusions and directions contained in paragraph 860 (8) and the language used in the concurrent opinions of Pandian and Sawant, JJ. In support thereof, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered and upheld the right to reservation in promotion and upheld the right to reservation in promotion to the Dalits and Backward Classes and applied the roster points to such promotions. itself goes to point out and reassure us that prospective overruling of Rangachari's case by Jeevan Reddy, J. is a majority opinion. In that view of the matter, the Micro Lexicon Surgery fails. The next questions are: whether the prospective over- ruling of Rangachari's case, to be operative after five years from the date of Mandal's case, amounts to judicial legislation? Is it void ab initio under Article 13(2) of the Constitution? whether it is violative of the fundamental rights of the appellant-petitioners and whether the exercise of the power by this Court under Article 32(4) and 142 of the Constitution is inconsistent with and derogatory to the fundamental rights of the appellants-petitioners and, if so, what would be the consequence? It is settled constitutional principle that to make the right to equality to the disadvantaged Dalits and Tribes meaningful, practical contents of results would be secured only when principles of distributive justice and protective discriminatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth. The intention of the Constitution is, rather, to outline principles than to engrave details. In State of Karnataka vs. Appa Balu [(1995) Supp. 4 SCC 469 at 485-86] a two-Judge Bench of this Court, to which one of us, K. Ramaswamy, J. was a member, while interpreting Articles 17 and 15 (2) and the Civil Rights Protection Act, held that (J)udiciary acts as a bastion of the freedom and of the rights of the people. Jawaharlal Nehru, the architect of Modern India as early as in 1944 stated that the spirit of the age is in favour of equality though the practice denies it almost everywhere, yet the spirit of the age triumphs. The judge must be atune with the spirit of his/her times. Power of judicial review, a constituent power has, therefore, been conferred upon the judiciary which constitutes one of the most important and potent weapons to protect the citizens against violation of social, legal or constitutional rights. The judges are participants in the living stream of national life, steering the law between the dangers of rigidity on the one hand and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main aroused, that the rational faculties get befogged and the people are addicted to take immediate for eternal, the transitory for the permanent and the ephemeral for the timeless, it is in such transitory for the permanent and the ephemeral for the timeless. It is in such surging situation the presence and consciousness and the restraining external force by judicial review ensures stability and progress of the society. Judiciary does not forsake the ideals enshrined in the Constitution, but makes them meaningful and makes the pople realise and enjoy the rights. The Judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs; make meaningful the right to life and give effect to the Constitution and the will of the legislature. This Court as the vehicle of transforming the nation's life should respond to the nation's needs, interpret the law with pragmatism to further public welfare to make the constitution broadly and liberally enabling the citizens to enjoy the rights. In Sakal Papers (P) Ltd. Ors. V/s. The Union of India [(1962) 3 SCR 842 at 857] it was held by another Constitution Bench thus; It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution Bench had held that like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its government by perceptible limitations, limitations. arising by reference to the need for re-adjustment in a changing society, a re-adjustment of legal norms demanded by a changed social context. This need for adapting the law to new urges in society brings home that truth that the life of the law has not been logic, but it has been experienced. The law is forever adopting new principles from life at one end and sloughing off old ones at the other. The choice is between competing legal propositions rather than by the operation of logic upon existing legal propositions that the growth of law tends to be determined. Interpretation of the Constitution is a continuous process. The concepts engraved therein keep changing with the demands of changing needs and time. The doctrine of stare decisis is ordinarily a wise rule of action, because in most matters, it is more important that the applicable rule of law be settled right. The rule of stare decisis, though one tending to keep consistency and uniformity of decisions, is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions. This Court negatived the contention in Golak Nath's case that prospective over-ruling amounts to judicial legislation. Explaining the Blackstonian theory of law, i.e., Judge discovers law and does not make law, and the efficacy of prospective over-ruling at page 808 placitum D to H, this Court by a Bench of eleven Judges had held that the doctrine of prospective over-ruling is a modern doctrine and is suitable for a fast moving society. It does not do away with the doctrine of stare decisis but confines it to past transactions. While in strict theory, it may be said that the doctrine involves the making of law, what a Court really does is to declare the law but refuses to give retrospectivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a Court finds law and that it does make the law. It finds the law but restricts its operation to the future. It enables the Courts to bring about a smooth transition by correcting the errors without disturbing the impact of those errors on past transactions. By implication of this doctrine, the past may be preserved and the future protected. The Constitution does not expressly or by nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account, while over-ruling the earlier decision or laying down a new principle. Equally, no distinction could be made between claims involving constitutional rights, statutory right or common law right. The Court is required to adjust the competing rights taking into consideration the prior history of the rule in question, its purpose and effect and to find out whether retrospective operation will accelerate or retard its operation. Therefore, evolving of the appropriate rule to give effect to the decision of the Court over-ruling its previous precedent, is one of judicial craftsmanship with pragmatism and judicial statesmanship as a useful outline to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law operated prior to the date of the judgment over-ruling the previous law. The question, therefore, is: whether such a decision is void when it offends the fundamental rights under Article 13(2) of the Constitution? The doctrine of voidity was dealt with in the Administrative Law by wade (Seventh Edition) at page 342, and it is stated that the truth of the matter is that the Court would invalidate an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ors. [(1991) 4 SCC 584], a Constitution Bench was to consider the scope, ambit and limitation of the exercise of the power under Article 142. Therein, the contention raised was that the direction issued was contrary to the statutory provision violating Article 21 of the constitution and that, therefore, the power under Article 142 could not be exercised in that backdrop. This Court explaining the interplay of inference of Prohibition or limitation on the constitutional power and as to when need to its exercise the same under Article 142 arises, had pointed out in para 83 thus: It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the apex Court under Article 142(1) is unsound and erroneous. In both Garg as well as Antulay cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise. In Delhi Judicial Service Association, Tis Hazari Court, Delhi vs. State of Gujarat Ors. [(1991) 4 SCC 406] and In Re: Vijay Chandra Mishra [(1995) 2 SCC 584], this Court considered its paramount power and duty to protect limbs of administration of justice from those whose actions created interference with or obstruction to the course of justice. It was held that the failure to exercise the power with such situations, when it is invested specifically for the purpose, is a failure to discharge the duty. The first case deals with a case when the judicial officer in Gujarat was assaulted by the police and in the latter when a practising advocate assaulted a Judge of the High Court, this Court took suo motu action and passed appropriate orders, in spite of absence of specific power to deal with or despite the disciplinary power available under the Advocates Act. In Delhi Development Authority vs. Skipper Construction Co.(P) Ltd. Anr. [(1996) 4 SCC 622], a Bench of two Judges exercised the power under Articles 129 and 142 of the Constitution and not only punish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to several persons in several services, grade or cadre of the Union of India or the respective State Governments. This Court, with a view to see that there would not be any hiatus in the operation of that law and, as held earlier, to bring about smooth transition of the operation of law of reservation in promotions, by a judicial creativity extended the principle of prospective over-ruling applied in Golak Nath case in the case of statutory law and of the judicial precedent in Karunakaran's case and further elongated the principle postponing the operation of the judgment in Mandal's case for five years from the date of the judgment. This judicial creativity is not anathema to constitutional principle but an accepted doctrine, as an extended facet of stare decisis. It would not be labelled as proviso to Article 16(4) as contended for. In S.P. Sampat Kumar vs. Union of India Ors. [(1987) 1 SCC 124], while noticing that the Administrative Tribunal Act suffered from constitutional invalidity, instead of declaring the Act as invalid, declared that its invalidity would be removed by making necessary suggested amendments thereto so that the law will become consistent w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case. Similarly, the ratio in Atam Prakash vs. State of Haryana Ors. [(1986) 2 SCC 249] is equally inapplicable to the facts of this case. Therein, it was declared that the justification of right of pre-emption to different classes enumerated in Section 15 of the Punjab Promotion Act was declared ultra vires and inconsistent with the modern concept of equality. Therefore, it was held that the law was not valid. Equally, the ratio in Waman Rao's case (supra), is equally inapplicable. Therein, it was held that a law violating the fundamental rights was void but it remained valid under the protective umbrella of Schedule IX of the Constitution and, therefore, though it was void, it cannot be declared to be void and remained to be valid law. But a post-constitutional Kesavananda Bharati law which did not receive the protective umbrella of Schedule IX is void from its inception. we are not concerned, as stated supra, with statute law in this case. Under those circumstances, the ratio therein is inapplicable to the facts in this case. A.R. Antule's case is inapplicable to the facts in this case. Therein, though this Court had directed under Article 142 trial of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
