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Vichitra Banwarilal Meena Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 874 of 1982
Reported inAIR1982Raj297; 1982()WLN294
ActsConstitution of India - Articles 14, 46, 226, 334 and 368; Constitution of India (45th Amendment) Act, 1980 - Sections 2
AppellantVichitra Banwarilal Meena
RespondentUnion of India (Uoi) and ors.
Advocates:Party in person
DispositionPetition dismissed
Cases ReferredSmt. Indira Gandhi v. Raj Narain
constitution of india - article 334--validity of 45th amendment--extension of reservation in lok sabha and vidhan sabhas of schedules castes & scheduled tribes from 30 years to 40 years--held (a) amendment is intra vires & valid; (b) amendment does not infringe right of equality; (c) reasonableness & fairness of amendment is not justiciable and (d) amendment does not infringe basic features of constitution;the forty fifth amendment of the constitution of india extending the term for reservations in lok sabha and vidhan sabhas for scheduled castes and tribes from 30 years to 40 years is intra-vires constitutional and valid; 2) that the above amendment instead of infringing fundamental right of equality of the scheduled castes and tribes, ensures them equality and upgrades as.....orderguman mal lodha, j. 1. the iyer coined 'bharati ghost' (bhim singhji's case (air 1981 sc 234)) is haunting the corridors of this court now, brandishing broken and smashed sword of golak nath (air 1967 sc 1643) a giriian (scheduled tribe) is attacking the 45th amendment (d. d. basu's shorter constitution of india, p. 807. eighth edn. the constitution(forty-fifth amendment) act, 1980) for giving a decisive death-blow to article 334 of the constitution. vichitra, the petitioner, little realises the distinction between homicide and suicide. the billion dollar question is his success in striking down the reservations, whether would be disaster for the girijans and failure may result in blessings in disguise.2. the razor-thin distinction between photo finish race of homicide v. suicide by.....

Guman Mal Lodha, J.

1. The Iyer coined 'Bharati Ghost' (Bhim Singhji's case (AIR 1981 SC 234)) is haunting the corridors of this Court now, brandishing broken and smashed sword of Golak Nath (AIR 1967 SC 1643) a Giriian (Scheduled Tribe) is attacking the 45th amendment (D. D. Basu's Shorter Constitution of India, p. 807. Eighth Edn. The Constitution(Forty-fifth Amendment) Act, 1980) for giving a decisive death-blow to Article 334 of the Constitution. Vichitra, the petitioner, little realises the distinction between homicide and suicide. The billion dollar question is his success in striking down the reservations, whether would be disaster for the Girijans and failure may result in blessings in disguise.

2. The razor-thin distinction between photo finish race of homicide v. suicide by Vichitra. may become too obscure to be spelled out or to be observed even by a microscope, if the fatal writ issued for alleged paralysation of parliamentary function of 'reservations' or special reservations.

3. Visualising perhaps the above situation, the eminent Justice Krishna Iyer gave the following warning which if not true in Bhim Singhji's case (AIR 1981 SC 234) (supra), is much more true now in Vichitra's case:--

'To permit the Bharati Ghost to haunt the corridors of the court brandishing fatal writs for every feature of inequality is judicial paralysation of Parliamentary function.'

4. Even when Kesavanand Bharati,AIR 1973 SC 1461 was in womb determined to kill and smash Golaknath, like 'Krishna Avtar' for 'Kansa' and to damage and demolish its dimensions. Mishra and Ray, JJ. (Basudev Khadanga v. U.O.I. (AIR 1973 Orissa 136)1 repelled challenge to 23rd amendment and killed a still-born theme of Vichitra.

5. Effort of Golaknath to take rebirth after being killed by Kesavanand Bharati could not succeed in Minerva Mills' case AIR 1980 SC 1789, Wamanrao's case, AIR 1981 SC 271 and in Bhim Singhji's case (AIR 1981 SC 234) (supra) Vichitra, petitioner, however, takes inspiration from stray deduction of a jurist (Dr. S.R. Bhansali, Associate Prof. (Law), University of Raj., Jaipur : 'Essential Features of the Basic Structure of Indian Constitution', 1982) wherein he observed as under:--

'A Walnut tree planted by Golaknath in the Supreme Court was threatened by a storm brought by Kesavanand Bharati, but the same is now being nourished by the Minerva Mills in the hope that the posterity will enjoy the fruits.'

6. Ever-increasing expansion of reservation term from 10 to 20, 20 to 30. and 30 to 40 by amendment of Article 334 whether demolishes, essential featuresof the basic structure of the Constitution, as alleged by Vichitra Meena, a Girijan, Scheduled Tribe student of Law, who has exhibited his enthusiasm, for protecting his fundamental right of equality of opportunity and equality before law, is the pivot or ex parte constitutional debate in this writ petition.

7. Descending from Constitution planet of the moon, down to the earth, now the traditional facts,

Vichitra, the petitioner belongs to Meena Segment of Scheduled Tribe of Rajasthan. A citizen of India and student of law. Vichitra, has filed this 'Vichitra' writ petition, which is 'Vichitra' in several ways.

8. The extraordinary prayer for reelection throughout India of all legislatures in States and Lok Sabha, is coached in very simple ordinary language of the following prayer clause:--

'It is, therefore, most humbly prayed that the 45th and other allied amendment of the Constitution of India Acts may kindly be declared null and void and immediate re-elections in all the constituencies be ordered and the by-elections being held on 19-5-1982. be stayed till the disposal of this writ peti? tion.

The Dausa and Veir Constituencies may kindly be declared as general constituencies with immediate effect, inter alia other reserved constituencies.

That the petitioner may kindly be granted all the costs of the writ petition and necessary legal aid in view of the public importance of the case.'

9. It appears that he has drafted the petition himself and was not very clear about the challenge which he wants to make. In one breath he has attacked reservations to the Scheduled Castes and Tribes under Articles 330 to 334, by extension for 40 years. In the next breath, he has mentioned that there are no extra or technical qualifications to become a member of Parliament or an M.L.A. unlike the Government servants. This introduces lack of coherence.

10. In para 7, he claims that extension of reservation has got no basis to justify the violation of his fundamental right in favour of upliftment of the weaker sections of the society.

11. In this three-page writ petition, he has prayed that this Court should order re-elections in all constituencies inIndia. The petitioner wanted by-election in Rajasthan which was scheduled to be held on 19th May. 1982 to be stayed, but he argued the case for the first time in Court on 1st July, 1982, i.e., much after the results of the by-elections were declared,

12. Yet another Vichitra feature of his petition is that respondent No. 3 has not been named and all that has been mentioned is that M.L.A, of Dausa. Though he was allowed assistance of Shri M.R. Calla, who was present in the Court on 1st July, 1982, but the case was argued again by him personally as he submitted that on account of the political implications of the great challenge which he has made to reservations, no advocate can frankly argue the case.

13. Although his petition is full of incoherence and lacunas in many particulars, but since he is a citizen and seemingly an over enthusiast one claiming to uplift the weaker section of the society and posing to be the champion of the cause of the fundamental rights, I have chosen to ignore all superficial, technical and formal requirements of law of a proper writ petition, in order to do substantial justice in a speedy manner for the cause of social justice.

14. Article 334 of the Constitution reads as under:--

'334. Reservation of seats and special representation to cease after forty years. -- Notwithstanding anything in the foregoing provisions of this Part, the provisions of this Constitution relating to--

(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and

(b) the representation of the Anglo-Indian Community in the House of the People and in the Legislative Assemblies of the States by nomination, shall cease to have effect on the expiration of a period of forty years from the commencement of this Constitution:

Provided that nothing in this article shall affect any representation in the House of the People or in the Legislative Assembly of a State until the dissolution of the then existing House or Assembly, as the case may be.'

15. This article has undergone three amendments, the last being 45th amendment and every time there has been 10 years' extension. It has now become 40years instead of original 10 years after being extended to 20 by 8th amendment of 1959 and 30 by 23rd amendment of 1969.

16. In the original form in 1950, it was as under:--

'Notwithstanding anything in the foregoing provisions of this part, the provisions of this Constitution relating to--

(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and

(b) the representation of the Anglo-Indian Community in the House of the People and in the Legislative Assemblies of the States by nomination shall cease to have effect on the expiration of a period of ten years from the commencement of this Constitution.'

17. Shri Vichitra has during his arguments, submitted that it was his fundamental right to be treated with equality with other citizens of India. However, when he has been given special reservation then he feels that he has been discriminated as it retards the upliftment of the weaker section of the society, the Scheduled Castes and Tribes. According to him, extension of the reservations in the legislatures is without justification.

18. The bedrock of his submission is that there is no basis to claim that without reservation, the Scheduled Caste and Scheduled Tribe persons would not be sufficiently represented in the legislatures after the expiry of initial period of 10 years and in any case of 30 years.

19. Yet another contention, which emerges in this case though not precisely argued by Shri Vichitra, is, that amendment of Article 334 has resulted in violation and destruction of essential features of the basic structure of the Indian Constitution, which are claimed to be as under;--

1. Republican and democratic form of Government;

2. The mandate to build a welfare State contained in Part IV;

3. Secular character of the Constitution;

4. Federal character of the Constitution;

5. Democratic character of Government:

6. Essential features of the individual freedom secured to the citizens;

7. Dignity of the individual;

8. Sovereign democratic republic;

9. Justice, social, economic, and political;

10. Equality of status and opportunity;

11. Parliamentary democracy;

12. Concept of social and economic justice to build a welfare State; and.

20. The planery powers of constituent body to amend the Constitution in accordance with Article 368 of the Constitution cannot be questioned. Whether constitutional amendment was required in the facts and circumstances or for the Reasons given in the Statement of Objects introducing the bill or statement of the Minister concerned before the bill was passed, is normally not justiciable,

21. What are the essential features of the basic structure of the Constitution, is a subject, on which, the law is yet to be settled. Their Lordships of the Apex Court have, themselves, left it open and, to some extent obscure to spell out them precisely and in a concise form. However, in this case, the petitioner came with the basic submissions that his fundamental right of equality is infringed. By the constitutional amendment, fundamental right can always be infringed or taken away according to Bharati's case (AIR 1973 SC 1461) (supra) but if the amendment relates to an essential feature of the basic structure then that amendment can be challenged. Obviously, what I am going to say. hereinafter, would show that neither fundamental right is infringed nor any essential features of the basic structure is violated. Contrary to it, the amendment as would be obvious from my discussions a little later, only assures the equality of status and opportunity to the S. C. & S. T. which is very much in peril if Article 334 is not amended making Articles 330 to 333 dead. But the first hurdle and impediment is that it is impermissible to travel into the legislative fields for ascertaining the mind of the legislature after the articulation of 45th amendment.

22. This Court cannot act as a 'third' chamber after Lok Sabha and Rajya Sabha and Vidhan Sabhas approval. The reasonableness justification, felt necessities of times, the bedrock of the facts and date debated by 544 public representatives in the Lok Sabha and 244 in the Rajya Sabha and considered as reasonable by the requisite majority of them and approved by majority of 3997 legislators in Vidhan Sabhas in terms of Article 368 of the Constitution, can hardly be the matter of second innings by a consideration like an appellate court by one Judge or even the entire judiciary of the country taken together. I am, therefore, firmly of the opinion that the question of sufficiency of reasons for the 45th amendment to extend the reservations from 30 to 40 years, is outside purview of the judicial review. I have got no obscure exhaulted unwarranted notion of acting as an appellate forum for deciding the correctness, propriety or sufficiency of the reasons, which led to the 45th amendment of the Constitution.

23. Without having any doubts about the complete absence of jurisdiction and without having any illusion and delusion of converting this Court as a third chamber. I have heard Shri Vichitra with patience and rapt attention because, the issues raised are undoubtedly of serious magnitude.

24. Even on the assumption that this Court can enter into a limited field for examining any extraneous consideration or mala fides having crept in, which are sufficient to strike down an administrative order, but have got doubtful relevance about the legislative functions and hag got no relevance about the constituent power of the supreme legislature under Article 368, I have yet applied my mind to the core of the submissions of Shri Vichitra in this respect.

25. In my considered opinion, the reasonableness and fairness or necessity of the extension of reservations from 30 to 40 years, can be best known by having the comparative study of the number of Scheduled Caste and Tribe candidates elected from general seat in the country to the House of the People, or Vidhan Sabhas. The data in this respect is scanty and I had to independently obtain informations from the various Government information bureaus for collecting the data. With great difficulty, it has been revealed on the basis of the scanty informations available, that during last 40 years of the exercise of adult franchise after independence of the country. people of this largest, bieeest and in the view of some of the international jurists and statesmen, most successful democracy only, the following a few have been returned on the general seats:--

Chart showing representation of Scheduled Castes and Scheduled Tribes in Indian

Legislatures on Reserved and General

Seats from 1952 to 1980.

YearTotal Seats.ReserveSeatsGeneralSeatsPopulationGeneral

S.C.S.T.S.C.S.T.S.C.S.T.1951Lok Sabha4817429511951 Census.Vldhan SabhaS17T470221745,50,63,7222,24,39,74036,09,50.3691957Lok Sabha5007631a8Vidhan Sabha3202470221871961Lok Sabha5007631121961 Census.Vldhan Sabha31964712226,45,11,1142.98.83,47045,90,72,5821967Lok Sabha521773702Vldhan Sabha35635032621971Lok Sabha5197787141971 Census.Vldhan Sabha8565503262326,44,17,3983,01,72,22154,73,61,9281971Lok Sabha522774014Vidhan Sabha3771518321321977Lok Sabha542783812Vidhan Sabha399754028213101970.Lok Sabha54279401080Vidhan Sabha399755730317

Note :-The above figures of statistics are based on the available reports of tha Scheduled Castes & Scheduled Tribes Commisioner, Government of India published every year under Article 338 of the Constitution and partially on the Government of India Publication Division. Publication (INDIA) of relevant years. The statistios may not be precisely exaot but are almost correct.

A naked, plain, bald and sweeping look at the above figures would convince every literate or even illiterate, politically conscious or even unconcerned citizens that, but for the successive amendments introduced under Article 334 and the wise articulation and inclusion of Articles 330 to 334, the Scheduled Castes and Tribes would have virtually remained untouchables to the mighty mansions or halls of the Lok Sabha and the Vidhan Sabhas, and would have kept languished as Class II citizens, sitting in Parlok Sabha only.

26. Though it is not for me to adjudicate, but the phenomenon of oppression, suppression, repression and logically depression of Harijans and Girijans which are Scheduled Castes and Tribes and belong to the poor down-trodden, not only weaker but weakest segment of the society of India, i.e., Bharat, is so patent and written on the walls and scribed on streets and not only temples and wells but all public places where people gather and forgather, that if I am to use, Justice Holme's language, 45th amendment has a logical termination and result of the 'felt necessities of times' and the writings on the walls in India,

27. In order to substantiate my above deductions, the following conclusions from the report of Shri Shisir Kumar, Commissioner of Scheduled Castes and Tribes, under Article 338 of the Constitution, submitted on 29th December, 1977 to the President of India, which I have extracted in my paper, 'the slur of un-touchability in India--Scheduled Castes, Scheduled Tribes and Backward Classes Socio-Economic Revolution of Three Decades under Directive Principles of Indian Constitution' in the Seminar organised by the Director, Professor Shri Paras Diwan the Department of Laws, Punjab University, Chandigarh, under the Chairmanship of Shri J.N. Kaushal, M.P., on 28th Feb., 1981 (1) may be taken note of:--

'Three decades of independence, and the dawn of freedom is yet to bestow a willing smile on many hamlets and slums of the Scheduled Castes and Scheduled Tribes. They continue to submit to the decrees of fate rather than have the benefits of the decrees of our basic law. Liberty, Equality and Fraternity, sorichly enshrined in the Constitution of the country have still to acquire any meaningful proposition for most of them. Untouchability has been abolished by Article 17 of the Constitution but those whose article of faith in his pernicious persuasion is superior to an article of the Constitution choose to defy the fundamental law with impunity. That a law, such as the protection of the Civil Rights Act, with more stringent provisions to eradicate untouchability, had to be enacted in the thirtieth year of our freedom by amending the Untouchability Offences Act. 1955, bears ample testimony of the fact that we continue with our sin of denying basic human rights to quite a sizeable section of our people. There are many areas in the country where the Scheduled Castes are denied even common sources of drinking water. At places, they dare not to take out funeral processions through the same route on which others do.' (2).

'The nation's resolve made with due solemnity to secure to all the citizens,

'Justice--Social, economic......' has remained just a promise, honoured perhaps more in breathes in the case of the Scheduled Castes and Scheduled Tribes. Political justice, even if available, loses much of its meaning if it is bereft of social and economic justice.' (2)

'A moral and unhealthy social disequilibrium continues despite legal provisions and state efforts to contrary. There is an obvious clash between the aims of the society and response of the society. The unethical practices of the society have tended to prove stronger than the prescriptions of law. The irrelevant continues to subordinate the relevant. Perhaps the efforts made so far to change the milieu bv state action have been more in the nature of expedients rather than borne out of a firm conviction to change the social landscape, to initiate a social revolution whatever the social and political cost the transition might demand. The result: hesitant approach to equality and the dragging feet of justice. So much has been done for these communities all these years may be a rightful claim. But, how little has been achieved, cannot be easily disclaimed.'(2)

'Untouchability has been abolished by law. But, can one dare to say that vicious practice has altogether disappeared from our society? What to say of the rural areas, even in cities and towns un-touchability continues to be observed in one form or the other. The Untouchability Offences Act, 1955, was found want-ins and has now been substituted by the Protection of Civil Rights Act which came into force on 19th November, 1976. No doubt the penal provisions in the present Act have been made more stringent but what is needed is the expeditious disposal of such cases. Our experience with the previous Act has not been happy. From 1955 to 1976, as many as 22,470 cases under the Untouchability Act were registered of which 19,893 were taken to court, out of which 3,402 were compounded, 3,288 acquitted and 6,178 offenders were convicted. Since the cases were allowed to hang on for a long time in the courts and Scheduled Caste persons were subjected to various kinds of pressurisation, many of the cases were either lost or compounded.'

'Bondage and emancipation have been co-existing in this country even after independence. Among the many forms of exploitation of the Scheduled Castes and Scheduled Tribes, one is to force them to work as bonded labourers. Bonded labour is known by various names in different parts of the country.' (2)

'Inordinate delays take place at various levels in the disposal of cases of atrocities on the Scheduled Castes and Scheduled Tribes, in the courts of law, as a result of which a large number of cases are pending in these courts. Most of the Scheduled Caste/Tribe victims of atrocities are socially and economically backward landless people and they do not have required means to collect and present prosecution evidence against the perpetrators of these atrocities who are generally well-to-do and influential people. Our laws, with their rigid formalistic concepts and procedure are apt to take their course without taking these facts into consideration. Unless our judiciary shows more realism and the rules of evidence take cognizance of the utter backwardness and helplessness of the victims of atrocities due to socio-economic causes, the ends of justice will not be met. When these cases of atrocitiesare disposed of, the requirements of justice, specially social justice to the victims are also met.'(2)

'The society and the Government should, therefore, view the atrocities against weaker sections clamouring for social justice not as mere violations of law but as deep-rooted sins against the society by the predominant sections which law and courts of law may not encounter to the fullest satisfaction in the given context of our social development. While dilating on the method of sociology in the judicial process. Cardozo says:

'From history and philosophy and custom, we pass, therefore, to the force which in our day and generation is becoming the greatest of them all. the power of social justice which finds its outlet and expression in the method of sociology. '(2)

'In human conditions under which the scavengers flayers and tanners work remain to be tackled. The degrading practice of manual removal of night soil by scavengers who belong to a particular community of Scheduled Castes still continues in many parts of the country. '(2)

I cannot resist temptation of extracting a few more lines from the above book of Shri Paras Diwan, wherein an incident has been narrated which would itself give a clinching reply to the reasons of 45th amendment and would be an eye-opener to Shri Vichitra and many others who want to scrap reservations in the legislatures for the Scheduled Castes and Tribes.

'I cannot restrain myself from mentioning a tragic incident, which though innocent, and without design or malice. would show that the Commissioner is only conservative in his observations.

The occasion was the dinner to Chief Minister of my State. The host was one of the top brass of State dignitaries. The Chief Minister was to be felicitated on his taking over the reins of 2 1/2 Crores of Rajasthanis,

As soon as the Chief Minister came, the better half of the host was in panic. She was semi-hysteric, whether Mrs. Chief Minister would come and she will have to garland her, was her dilemma? She suddenly got relief as the Chief Minister came alone. The Dinner started.All were at the dinner-table but she avoided even when her husband was taking dinner and extending all hospitalities and courtesies to the Chief Minister.' (1)

'Why? The dinner-table dishes having been touched by the guest of the day, her orthodox religious hangover would not permit her to eat it. even though she very much struggled within her mind to keep pace with her husband. The Chief Minister left the place after the dinner was over. She got new life for God soved her from becoming 'Adharmic'.

Her husband must have pulled her up but she with best of her intentions, could not help all this which constitute slur, and stigma on our generation and Hindu Society. It happened in Spare Age of 1980 and that too in the Capital of Rajasthan. Not that the lady had any malice. She was innocent being a village folk the guilt is ours who could not educate our womenfolk of the new value after three decades of independence.

The implications of the above incident are terrible and horrible. My head hungs with shame that it happened in my State which may otherwise claim the proud privilege of having 'Harijan' as the Chief Minister--politics apart as it is irrelevant for me as a Judge.'(1)

28. Shri Shishir Kumar, Commissioner of Scheduled Castes and Scheduled Tribes in his 25th report dated the 29th December, 1978, has stated that there is 75 per cent increase in the offences of atrocities on Scheduled Castes and Scheduled Tribes in India in 1977-78, in comparison to 1976. Whereas in 1976, total criminal cases registered were 6,197 the number increased to 10,879 in 1977. The report contains the introductory remark that the atrocities on the depressed classes, have increased, even though the efforts to improve their socio-economic conditions have gained new dimensions by all-round drive for it.

29. The President N. Sanjiva Reddy was deeply concerned, moved by the pathetic, tragic plight of Harijans and Girijans, he observed:

'I am naturally concerned over the incidents of violence and hooliganism and that had taken place in the recent weeks. All people who believe in democracy and non-violence share their concern. Caste should not be the criterion for providing help to the poor and the down-trodden. All poor and the underprivileged deserve help irrespective of their caste and religions.'

30. While saying so he only echoed the sentiments of Mahatma Gandhi, Farther of Nation who said:--

'Whether in prison or outside, Harijan service will be after my heart and will be more precious than the breath of life for me, more precious than the daily bread.'

31. Pandit Nehru, the architect of India raised a tirade and waged a war against social in iustice and said, 'Untouchability is a blot on our society and that untouchability and caste system must be erchewed from our social life once for all.'

32. Manu Mahar Dr. Ambedkar, the great Crusader fighter to his last breath against the Himalayan injustice to the Harijans warned:

'1 do not care for the credit which every progressive society must give to its rebels. I shall be satisfied if I make the Hindus realise that they are the sick men of India and that their sickness is causing danger to health and happiness of other Indians.'

33. Thakkar Bappa, the father of Harijan movement, reminded the people of India of the solemn pledge and said:

'It had to be remembered that the solemn assurance given by Gandhiji on behalf of the Hindu Community to liquidate untouchability from root and branch has not yet been fulfilled in toto.'

34. What Thakkar Bappa said at the time of attainment of independence, remains to be reminded even now after three decades of independence. The Constitution which we the people of India gave to ourselves and the solemn pledge and declarations in Preamble, have yet to be fulfilled.

35. What I have mentioned in the context of socio-economic revolution of three decades under the directive principles of Indian Constitution so far as it relates to the Scheduled Castes and Tribes in the above paper has got much more relevancy to be mentioned in the present case. I have observed there that the founding fathers of our Constitution must be feeling quite uneasy and disturbed at the hard reality that after three decades of the Indian Constitutionthe pious and sacred directives given by them, have witnessed mostly constitutional and legal gimmicks debates and dialogues in and out the temples of justice and the Parliaments of formal democracy, retarding the progress to be achieved in ati aining the cherished goal

of 'social justice'' eradication of poverty and removal of wide gaps of inequality between the privileged and unprivileged, rich and poor and have and have mots, and failure of emancipating and liberating teaming minions of poverty-strickens, half-naked, half-dressed, semi-starved, centuries' old oppressed and suppressed by Manu doctrines and injunctions and so depressed classes, Scheduled Castes. Scheduled Tribes and

economically weaker sections of the society, by indulging in superficial academic controversies of directive principles v. fundamental rights. judicial supremacy v. Parliamentary Supremacy (1)

36. The founding-fathers devoted various Articles such as 15. 16, 17, 19, 23, 23, 29, 35, 38, 46, 164, 244; 275; 320(4); 330, 331. 332. 333, 334, 335, 338; 339, 340, 341. 342, in the Constitution for promoting and safeguardingthe interests of persons belonging to the Scheduled Castes, the Scheduled Tribes and other backward elapses. Subsequently, Articles 39A, 371A, 371B and 371C were introduced by amendments to achieve the same object.

37. Untouchability was removed under Article 17 of the Constitution and its practice in any form was forbidden. Under Article 25 (2)(b) all Hindu religious institutions were thrown open to all

classes and sections of Hindus. Untouchability (Offences) Act, 1955, was enacted by Parliament under Article 35(a)(ii) of the Constitution whereby all actions involving untouchability were made cognizable offences. This Act was substantially amended and was renamed as Protection of Civil Rights Act, 1955, which came into force from 19th November, 1976.

38. The main constitutional safeguards for upliftment of the weaker sections and the Scheduled Castes and Tribes, who earlier were treated worse than dogs and donkeys as Chandals being not only untouchable but unseeable, who could use-a corner of the road onlyat mid-day when shadow is not visible, because, this shadow pollutes the 'Sarvanas', may be indexed as under:--

(i) the abolition of 'untouchability' and the forbidding of its practice in any form (Article 17);

(ii) the promotion of their educational and economic interests and their protection from social injustice and all forms of exploitation (Article 46);

(iii) the throwing open by law of Hindu religious institutions of a public character to all classes and sections of Hindus (Ari. 25 (2) (R)) :

(iv) the removal of any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public (Article 15);

(v) the curtailment by law, in the interests of any Scheduled Tribe, of the general rights of all citizens to move freely, settle in, and acquire property (Article 19(5));

(vi) the forbidding or anv denial of admission to educational institutions maintained by the State or receiving aid out of State funds (Art. 29):

(vii) permitting the State to make reservation for the backward classes in public services in case of inadequate representation and requiring the Stale to consider the claims of the Scheduled Castes and Tribes in the making of appointments to public services (Articles 16 and 335):

(viii) special representation in the Lok Sabha and the State Vidhan Sabhas to Scheduled Castes and Tribes till 25th January. 1990 (Arts. 330, 332 and 334);

(ix) the setting up of tribes advisory councils and separate departments in the States and the appointment of a special officer at the centre to promote their welfare and safeguard their interests (Arts. 164 and 338 and Fifth Schedule):

(x) special provision for the administration and control of Scheduled and tribal areas (Art. 244 and Fifth and Sixth Schedules); and

(xi) prohibition of traffic in human beings and forced labour (Article 23).

39. But, in my opinion, Article 334 is the repository fountain and bedrock ofpower, providing legislative weightage for enforcing all the above articles. Thisprovides upliftment of the weaker section by making them law-makers andfirst grade citizens oi India by becomingmasters of their own destiny. Unless their voice is properly heard in legislatures, all other Articles would remain 'crocodile tears' for them only as there would beneither enforcibility nor accountability. Article 334 is the real watch-dog of all other above Articles and ensures equality.

40. The census figures would show that the percentage of population of the scheduled castes and scheduled tribes in India is more than 23% and has crossed 13 crores which is more than population of Indonesia, Pakistan, Bangla Desh and Ceylon and about one-third such other countries of the world.

41. Justice Krishna lyer of Supreme Court observed that Caste, undoubtedly, is a deep-seated pathology to eradicate which the Constitution took care to forbid discrimination based on caste, especially in the field of education and services under the State. The rulings of this Court interpreting the relevant articles, have hammered home the point that it is not constitutional to base identification of backward classes on caste alone. If a large number of castes masquerade as backward classes that division in educational campuses and public offices the whole process of a caste-free society will be reversed. We are not directly concerned with backward classes as such, but with the provisions ameliorative of the Scheduled Castes and Scheduled Tribes. Nevertheless, we have to consider seriously the social consequences of our interpretation of Article 16 in the light of the submission of counsel that a vested interest in the caste system is being created and perpetuated by over-indulgent concessions, even at promotional levels, to the Scheduled Castes and the Scheduled Tribes, which are only a species of castes. 'Each according to his ability', is being substituted by 'Each according to his caste' argue the writ petitions and underscore the unrighteous march of the officials belonging to the SCs. and STs. over the humiliated hands of their seniors and more meritorious brothers in service. The aftermath of the caste-based operation of promotional preferences is stated to be deterioration in theoverall efficiency and frustration in the ranks of member not fortunate enough to be born SCs. and STs. Indeed, the 'inefficiency' bogie was so lucidly presented that even the railway accidents and other operational calamities and managerial failures were attributed to the only villain of the piece, viz., the policy of reservation in promotions. A constitutionally progressive policy of advantage in educational and official career based upon economic rather than social backwardness was commended before us by counsel as more in keeping with the anti-caste, pro-egalitarian tryst with our constitutional destiny. And Shri Shanti Bhushan, at one stage, helped the court to realise the consequences of its verdict if it upheld the pampering package of promotional preferences by warning us of running battle; in the streets, a sort of caste-war, against birth based on 'privileges' for the harijans-girijans millions'.

42. According to Justice Iyer, thirty years of constitutional functioning have produced the following results, whether it can be the socio-economic revolution in the words of Shri Iyer: --

'66. Social realists will read these pessimistic figures of the last ten years which prove the myth and negate the neurotic rhetoric about the SC and ST communities having cornered all the posts in the Central Government from Chaprasi to Secretary 'accelerating thereby the impending calamity of administrative collapses due to the disproportionate presence of the 'inefficient' social components. A mere formula of reservation is not the factum of recruitment. That is morbid fancy. The truth is that more aggressive policies than paper reservations are the need if equality and excellence are the creed. Reservation is but one strategy and historically has established itself. More must be done by a complex of processes by which Harijans/Giriians will get boosted in 'capabilities', and main-streamed to share in the Civil Service Cake. The poor annual assimilation into the public employment sector of the weaker social segments makes a (ragic mockery of the statistical Jugglery or harijan monopoly. Any theory or formula is best tested by how it works, not by how it is worded. Nikita Kruschev once remarked '......a theoryisolated from practice, is dead, and practice which is not illumined by......theoryis blind.' The theoretical attack on overrepresentation flowing from the reservation rule must be tried out in practice, as the figures for the last 10 years show; and the justification for more facilities and higher percentage in public employment must be validated by the thesis of social justice. Assertions either way end in a blind alley. That is why we have been at pains to project the constitutional theory and resultant representation of SC and ST reservations under Article 16 (4).'

43. I had occasion to notice the contribution of Dr, Ambedkar, the Manu Mahar who led liberation movement of the Dalits backward classes in India, while prefacing my judgment in Harphool Singh v. State of Rajasthan (Civil Writ Petn. No. 454/80, decided on 25-8-1980: (reported in AIR 1981 Raj 8) (Jaipur) (Law,' Morality, and Politics. by Justice G.M. Lodha, 1981 Edn. p. 207)) where one seat of reservation quota of Scheduled Castes and Scheduled Tribes was engulfed by a Swarn Caste (Jat Hindu) by giving false parentage, I have observed as under :--

''Mahar-Manu' Dr. Bhimrao Ambedkar's success in providing 'reservation', 'for' poor and down-trodden 'scheduled castes and scheduled tribes', who are centuries' old sufferers of oppression and repression, suppression and consequent depression, and who have been ruthlessly crushed and brushed aside, by the society, have been undermined, by ingenuity of superminds. Dr. Ambedkar, was Mahar-Manu, because he was 'Mahar' by birth and by drafting the great Indian Constitution, he rose to the heights of 'Manu', Mahrishi Manu again was a Non-Brahmin, who gave 'Manu Smriti' and formulated Hindu social laws giving emphasis to (i) the protection of women (ii) Protection of the weak fiii) the equality of man etc. It is in this context, that I have called Dr. Ambedkar 'Mahar-Manu' of the modern free India.

This case is a typical example of the same ingenuity where a 'Jat' (non-scheduled caste and tribe) student could successfully usurp the reservation quota in 'Medical College, by a novelistic device and trickery.'

'Such devices, in fact, not only deprive individual boys of scheduled caste and scheduled tribe, from getting admissions or appointments in the matter of service, if some protection is there, butactually pose a serious danger to the Constitution itself. However, as I have mentioned above neither respondents nor this Court, can now undo whatever violence has been done to the Constitution in respect of reservation of the Scheduled Caste and Scheduled Tribe by such devices. All that can be said is that District Magistrate and Educational Authorities, should be very careful in such matters in order to implement and respect constitutional safeguards and protection provided to the members of scheduled caste and scheduled tribe, both in the letter and spirit and should ensure that it is not abused and misused.'

44. The tragic plight of Scheduled Tribes (Adivasis) in whose name agricultural lands were allotted but who can never take the harvest and are thrown out from the fields was depicted by me while commenting on the tragic state of affairs of our law and law courts, where the Adivasis are outcaste from the rhyme of law courts. I have observed as under :--

'Are we to convert the sacred and pious temples of justice into 'legal gymnastic clubs', 'legal debating societies' or even 'luxurious research centres of law? Are we to wait and watch helplessly the gimmicks of talented logic and brilliant feats of oratory of (hese fortunate few, who can afford to have luxury of academic litigation at the cost of those thousands of litigants who are either waiting in jail cells for last 5 to 6 years to set their guilt or innocence decided or those thousands of civil servanls or industrial workmen, petty shop-keeners of farmers whose fundamental rights have been invaded by unscrupulous State functionaries and who want to have 'justice according to law' at least if not real justice or social justice, but who are not getting their turn of hearing due to heavy cause-list and arrears of cases. A lakh of such disappointed, helpless, impatient, gloomy, sad faces of litigants involved in about 10,000 pending cases, are staring before, and remind me of the great importance of giving effect to the 'riders' of 'substantial justice', substantial failure of justice' to make room for deciding their awaiting fates and to liberate them from 'coma' caused due to suspense of pending cases for more than a decade.'

'Again can we shut our eyes and become blind to the hard reality that lakhsof poor, down-trodden, less-privileged citizens are those who are still outcasle from the realm of courts, justice and law, as they cannot afford to reach and spend in competition of the privileged resourceful, educated and enlightened litigants, nor can they afford to await in long queue. That being so, even though they deserve consideration and relief from the courts, but we are helpless to act as 'watchdogs and sentinel' of Constitution and give justice to them.

While I am sitting in the court-room, my eyes are observing the unending stream of tears rolling from the eyes of 'Saharias of Sahbad' and others (tillers of Shahbad, sub-division, Kota District), who with their empty bellies and naked skeleton of bones and starving body are helplessly watching their farms being encroached, trespassed and cultivated and crops being harvested by rich, resourceful invaders, but they can never afford to even weep and cry in protest and cannot imagine of either going to a court of law or to obtain relief of getting back possession in spite of 'tall talk of legal aid to poor and its inclusion in Constitution. It may be that, if I describe the above tragic functioning of our law, courts of justice, enumerating the hard realities, I may for a while take a role of poet, philosopher or reformer, rather than a Judge but it is this restraint which is responsible for the widespread feelings that 'Judges live in ivory towers' a feeling which even if untrue or partially true, should be repelled by 'imparting speedy, cheap, social, ready and real justice' to the lowest in the ladder i.e., a tiller, workman, a cobbler etc., and not by using handy sword of 'contempt' only.' (Manzoor Ahmed v. Regional Transport Authority, Kota (AIR 1979 Raj 98) Law, Morality and Politics (Ibid.,) 115).

45. It is, therefore, the view of the most of the concerned authorities working for upliftment of weaker section on the basis of research and studies of various professors and social reformers, that the upliftment of the scheduled castes and tribes and backward classes yet require protection by reservations.

46. The socio-economic emancipation by uplifting them from Class IV to Class-I citizens, from pavement, slums to houses, from clumsy gloomy faces to rosy smiling faces, is yet to be achieved, and reservation in its widest indispensable till then. In my considered view, every fresh amendment of Article 334 reviews the above pledges of constitution makers, takes fresh vow to redeem the SC and ST from bonded labour and is the real homage to Articles 14, 15 and 46 of the Constitution.

47. In the above study. I have observed that I am, therefore, of the view that apart from the analysis of the Scheduled Castes and Tribes Commissioner which I have extensively quoted, the other research and studies of various professors and social reformers, have shown that though much had been done but much more is required to be done for achieving the goal of bringing the scheduled castes and scheduled tribes and backward classes in line with the other citizens of India who are more privileged.

48. The fight of the unprivileged, down-trodden poor, historically, centuries' old oppressed, repressed and suppressed harijans and girijans is not yet over and the irony is that the anti-reservations agitations on the pattern at Gujarat, have started in this country even before the desire of founding-fathers could be fulfilled.

49. Whether anti-reservation movement is to be termed as anti-revolution or counter-revolution is a matter more for politicians to comment but as one at the Judges of the Gujarat High Court put it in this context, it would be relevant that if our people cannot tolerate reservation of a few seats may be m the educational institutions or the services to those, who have not only been worst than chattels for centuries but even now, in the space-age and after thirty years of functioning of the Constitution, they are carrying human excreta, which we would not touch bv our feet, on their head and who are yet out-caste from all temples, religious places of worship, community wells, by and large, either we would be inviting a class war or mass conversion or a violent revolution.

Shri K. C. Markandan, in his treaties Directive Principles in the Indian Constitution, published in 1966, expressed satisfaction when he observed as under:--

'The catalogue of programme undertaken by the State which by no means is exhaustive with a view to promoting the welfare of the weaker sections of the people and, in particular, of the Sche-duled Castes and Scheduled Tribes, is indicative of fact that the State has not taken it to mean that the Directives are only pious resolutions but duties that they have to perform to realise the objectives of a welfare State.'

50. It is to be noticed as summed up by me in the above study that India is the only country in this space-age where millions of citizens are yet treated as Class II citizens except for the purposes of election, education and services. No human anywhere else compels the other to carry his excreta on head and virtually bath in the urine of others and remain in stinking gutters and lartines. Even after 3 decades, the slur stigma and blackspot of untouchability has not been eradicated even though substantial ly reduced.

51. I have discussed in wide compass and dimensions, the tragic plight of Scheduled Castes and Scheduled Tribes only to bring home, the point debated before me that the submission of Shri Vichitra that by continuance of reservations in legislators their upliftment would be retarded and they would be deprived of equality and opportunities of status is extremely fallacious, mistaken and devoid of any force. Contrary to it, this protection would help them in attaining equality from centuries' old inequality and oppression.

52. I, therefore, hold that although this Court cannot go into the question of reasonableness and justification of the 45th amendment, but even on the assumption of the jurisdiction to have a limited review, I am of the view that the extension of period of 40 years was wholly justified, reasonable and was in consonance with the necessity to uplift the Harijans and Girijans and provide them equal opportunity of participating in legislating their own destiny. This opportunity which they would have never got in the absence of reservations, if they would have been left to the mercy of the majority electing them on general seats, where they lack effluency, resources, status and are looked and condemned as Class-II citizens, even now in this space-age after more than three decades of the functioning of the Constitution.

53. The 45th amendment is, therefore, even on judicial scrutiny, found to be reasonable, fair, essential and indispensable and the real effective rich homage to Articles 46 and 14 of the Constitution. '

54. The decks are now clear to enter into the arena of much more important debate about the violation of the basic structure of the Constitution by permitting 'Bharati Ghost' to walk in the corridors of this Court, brandishing sword of 'Golaknath'. even though broken and destroyed. The dimensions of these high constitutional controversies are too wide, but they are imprisoned in some thousand printed pages of the decisions from Golaknath. Kesavanand, Indira Nehru Gandhi, Habeas Corpus case, dissolution of assembly case, Wamanrao. Bhimsingh to S.P. Gupta.

55. Since there was complete absence of any legal assistance on this important aspect of the controversy, I am depending upon my own study, oriented by a pragmatic and dynamic approach in contradiction to dogmatic, static and hearing 'voices from graves' approach.

56. The first and foremost questionis, whether the democracy in the federal Indian Constitution contemplates a democracy based on adult franchise. In Smt. Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, democracy was treated as essential feature of the basic structure of our Constitution. Mathew, J., termed it as established democracy by the Constitution (Paras 3 to 9 of Indira Gandhi's case). Beg, J.. in State of Rajasthan v. Union of India, AIR 1977 SC 1361 (Assembly Dissln. case) called it as basic democratic norms for the use of Article 356.

57. In the Assembly Dissolution case (Stale of Rajasthan v. Union of India, (AIR 1977 SC 1361) (supra), the State of Rajasthan and other States filed suits in the Supreme Court under Article 131 of the Constitution, challenging Union Home Minister. Shri Charan Singh's letter to the Chief Minister, to the States of Bihar, Haryana, Himachal Pradesh, Madhya Pradesh, Orissa. Punjab and Rajasthan, Uttar Pradesh and West Bengal commending that they may advise their Governors of their respective States to dissolve the State Assembly in exercise of powers under Article 174(2)(b) and seek a fresh mandate from the electorate. Charan's view was that this alone would be consistent with the Constitutional precedents and democratic practices.

58. Challenging the above, it was argued inter alia that the refusal of the Chief Ministers to give effect to the directive cannot be made a basis for the issuance of proclamation under Article 356 and that the said Article cannot be invoked for the sole purpose of dissolving the State Assemblies and holding fresh elections,

59. Beg, C. J., in his separate Judgment observed that if the basic structure embarrasses basic democratic norms, the constitutional machinery of Article 356 could conceivably be used by the Union Government for securing compliance with its view of such norms, when in its opinion, the State Government has failed to observe them. He further pointed out that if the directive principles of State policy. which embraces a vast principle of legislation for the welfare of masses of our people are also part of the basic structure which has to be ensured and maintained by the use of the constitutional machinery, the failure of the State Government or its legislature to carry out any of the constitutional mandates or directives, bv appropriate legislation may, according to possible view, be construed as a failure of its duties to carry out what the Constitution requires. At another place. Beg, C. J. pointed out that the supremacy of the Constitution was the basic structure of the Constitution.

60. In Minerva Mills v. Union of India (AIR 1980 SC 1789) (supra), a constitution Bench of five Judges was constituted. Chandrachud. C.J., and Gupta, Untwalia and Kailasam. JJ. held that Section 4 of the Constitution 42nd Amendment Act was bevond the amending power of Parliament and was void, since it damaged the basic and essential features of the Constitution and destroyed its basic structure by a total exclusion of challenge to any law on the ground that it was inconsistent with or took away or abridged any of the rights conferred by Article 14 or Article 19 of the Constitution. The law was for giving effect to the policy of the State towards securing all or any of the directive principles laid down in Part-IV of the Constitution.

61. These Judges said that the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other was to disturb the harmony of the Constitution. 'This harmony and balance', they said, 'between the fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.'

62. In Waman Rao v. Union of India (AIR 1981 SC 271) (supra). Chandrachud, C.J., Krishna Iyer, Tulzapurkar and Sen, JJ. held that the Constitution 1st Amendment Act, 1951 which introduced Article 31A in the Constitution did not damage or destroy the basic structure of the Constitution. Chandrachud, C.J., who delivered the majority judgment observed as under (para 29):--

'The First Amendment was thus made the Constitutional ideal oi equal iustice a living truth. It is like a mirror that reflects the ideals of the Constitution; it is not the destroyer of the basic structure. The provisions introduced by it and the 4th Amendment for the extinguishment and modification of rights in lands held or led for purposes of agriculture or for purposes ancillary thereto, strengthen rather than weaken the basic structure of the Constitution.'

63. It seems that Chandrachud, C.J. was justifying the validity of the First Amendment on the basis of 'equal justice' as the basic structure of the Constitution.

64. The latest decision is of Bhimsingh v. Union of India (AIR 1981 SC 234) (supra). Chandrachud, C. J. who delivered the majority judgment on behalf of himself, Bhagwati and Krishna Iyer, JJ, declared the Urban Land (Ceiling and Regulation) Act, 1976, valid except Section 27 (1) of the Act. A.P. Sen, J. who delivered his separate judgment, said that a legislation which directly runs counter to the directive principles of State Policy enshrined in Art, 39(b) and (c) cannot by the mere inclusion in the Ninth Schedule receive immunity under Article 31B. He agreed with the opinion of Chandrachud, J. (as he then was) in Smt. Indira Gandhi v. Raj Narain (AIR 1975 SC 2299), that the pillars of the Constitution are (1) Sovereign democratic republic. (2) equality of status and opportunity, (3) secularism, (4) citizens' right to religious worship; and (5) the rule of law. Sen, J., thereafter said that he would add the concept of social and economic justice to build a welfare State as a part of the basic structure or the foundation upon which the Constitution rests. He, therefore, concluded that theprovisions of sub-sees. (1), (2) and (3) of Section 23 of the impugned Act and the opening words 'subject to the provisions of Sub-sections (1), (2) and (3)' in Section 23 (4) were the very antithesis of the idea of a welfare State based on social and economic justice. Since those provisions permitted acquisition of property under the Act for private purposes, they offend against the directive principles of State Policy of Article 39(b) and (c), and, therefore, were not protected under Article 31B. Sen, J. also said that fhe remaining provisions of the impugned Act being in conformity with Part IV of the Constitution, were valid and had the protection of Articles 31B and 31C.

65. In that case, Krishna Iyer, J. also agreed with Sen, J. on (his point: 'that Part IV which seeks to build a social justice society is basic to our Constitutional order.' He, however, pointed out thaf the question of basic structure being breached could not arise when we examine the vires of an ordinary legislation as distinguished from constitutional amendment.

66. The last in series of classical judgments of the Apex Court in respect of the billion dollar debate of basic structure is, S.P. Gupta's appeal (AIR 1982 SC 149) (supra) popularly known as Transfer of Judges case. The momentum judgment was delivered by the Constitution Bench of seven judges. It would not be necessary to deal with this decision, because, it is mainly related to the concept of independence of judiciary and transfer and appointment of Judges.

67. Amongst the directive principles of the State, the Constitution provides the mandate of State to secure an essential order for the promotion of the welfare of the people, promotion of education and economic interest of the Harijans and Girijans and other weaker sections. Article 46 reads as under:--

'46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections -- The State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.'

68. Equal justice has been assured under Article 39A and Article 38 gives paramount importance for protecting order in which justice social and economic and political was informed of constitution of national life. The Stale is also required to ensure equality of status and facilities and opportunities not only amongst individuals, but also amongst groups or classes in different forms.

69. The Preamble to the Constitution proclaims justice and equality of opportunity to all and fraternity assuring dignity of the individual. The Preamble reads as under:--

'We, the People of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to all its citizens:

Justice, Social Economic and Political; Liberty of thought, expression, belief, faith and worship:

Equality of status and of opportunity; Fraternity assuring the dignity of the individual and the unity and integrity of the nation;

In our constituent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this constitution.'

70. I have extracted above various provisions made in the Constitution for the upliftment of the weaker section and particularly for Scheduled Castes and Tribes. How can that be achieved unless they are protected and provided equal status, opportunities and proportions in the legislature also where they can legislate and ensure enforcement and implementation of the above laws. To illustrate, Article 17 prohibited untouchability, but unless proper laws are made, it would not be possible to implement this article in letter and spirit. It was with this end in view that Act was made to punish those who practice untouchability. It would thus be seen that it is only when the weaker section, itself, got there representatives in Parliament and legislature that they can make special effort to enforce the various provisions of the Constitution.

71. A close scrutiny of the result of the elections held throughout the country would show that but for the reservations the Scheduled Castes and Scheduled Tribes would not have got any representation much less substantial representation. In Parliament in the vear 1977 there were 77 seats in the Lok Sabha for the Scheduled Caste and 37 for thescheduled Tribes. Only one Scheduled Caste candidate was elected from U. P. On a general seat. Again, available information indicates that in addition to the reserved seats, 3 Scheduled caste members, i.e., 1 in Orissa, and 2 in West Bengal, were elected to the respective Vidhan Sabhas against general seats. Similarly. 2 Scheduled Tribe members were elected to the respective Vidhan Sabhas against general seats, again one each in the States of Orissa and West Bengal, whereas in accordance with the provision made in Article 332 of the Constitution, 510 seats have been reserved for Scheduled Castes and 262 for Scheduled Tribes out of a total of 3,625 seats in the Vidhan Sabhas of the various State/Union Territories. However, one can evaluate the utter lack of representation if reservations are abolished, from chart extracted above.

72. In the report of Commissioner for Scheduled Castes and Scheduled Tribes, dated the 15th August. 1972, under Article 338 of the Constitution (Chapter 13 of report of Commissioner, SC & ST dated 15-8-1972; p. 122). it was observed as under:--

'13.7 Originally, the makers of our Constitution had provided for reservations in Parliament and State Legislatures for the Scheduled Castes and Scheduled Tribes for a period of ten years from 26th Jan. 1950. They apparently were under the impression that it would be possible to bring up the Scheduled Castes and Scheduled Tribes, educationally, economically and socially, during this period. Unfortunately that has not happened and the Government has been obliged 'o extend this period of ten years to twenty years in the first inglance and once again to thirty years. It is high time that all possible efforts were made to bring up these people to the general levels in our society in as short a period as possible, so that Government is not obliged again to do the unpleasant duty of extending the reservations for another decade. The political parties can help to a great extent in this endeavour. If all of them make it a point Jo help as many Scheduled Caste . and Scheduled Tribe persons as possible to return to the Lok Sabha and the Vidhan Sabhas against general seats, from their parties, the time will automatically come when the need for separate reservations for them may disappear.'

73. It was expected that political parties would help to wipe out the distinction and the need of reservation but the situation has not changed even in the latest election of 1979-80. The available figures show that it is only a few candidates who got general seats and the proportion is not .010% of the general seats.

74. The available statistics, therefore, clearly exhibit that it may take another century unless there is some radical change in thinking that non-scheduled castes and tribes would elect scheduled castes and tribes as their representative. For the social and economic upliftment of this weaker section, political representation by reservation is, therefore, must, more so to do justice to the directive principles of the State Policy and the various provisions of the Constitution in uplifting these poor and century-old suppressed, repressed, and secondly, these oppressed segments of societies are to be uplifted and efforts can be made for these segments of societies to make them class I citizens.

75. The 'equality' undoubtedly is one of the basic features of the Constitution but I am unable to appreciate Shri' Vichitra's argument that Harijan and Girijans, i.e., the Scheduled Castes and Tribes, would be treated unequally by providing them protection of reservation. In other words, it is difficult to appreciate how protection of reservation which is aimed at achieving equality of opportunity and status by making Hari-jan and Girijans who are otherwise handicapped and cannot become equal representative in Parliament, can be permitted as violative of equality.

76. This is, of course, well known that there is not fundamental right in any one citizen to contest for or to have a right to contesting each and every election although adult franchise in the broader sense has been treated as one of the essential features of the democracy.

77. However, no authoritative decision of the Apex court is yet available on an authentic catalogue of these basic structrue features supported by majority judgments and I am not required to enter into that exercise in this case.

78. I am convinced that the amendment of the Constitution by 45th amendment for reservation, by extending Article 334 from 30 years to 40 years is perfectly constitutional and valid.

79. There were very good reasons and justification for it as indicated above, although this Court cannot go into the reasonableness as it is not justiciable.

80. I am further of the opinion that by extending the period from 30 to 40 years Parliament and legislatures have only strengthened the essential feature of the basic structure of the Constitution in respect of democracy giving equal opportunity to all citizens, in the matter of adult franchise and proper representation in the legislatures.

81. My above conclusions arc further fortified by the conclusions of the Semi-war on Directive Principles Jurisprudence organised by the Department of Law, Punjab University, Chandigarh from 28th February to 1st March. 1981.

82. Shri K.K. Singhvi, Senior Advocate of Bombay in the above seminar observed as under :--

'Today not less than 50 per cent ofour population lives below the poverty line and the majority of the Scheduled Castes and Scheduled Tribes fall in this category (1)

'The proportion of Scheduled Caste agricultural labourers (18.80 per cent) is more than double the general population (8.67 per cent) and the rate of Scheduled Caste women labourers is ten times more than the general women.' (1)

'It is thus clear that members of Scheduled Castes and Scheduled Tribes which form almost 22 per cent of the entire population of the country are not only most poor and under-privileged but are being subjected to indignity, humiliation, gross discrimination and even physical torture.'(l)

'Our independence and democracy will have little meaning if such a large section of our community continues to be exploited socially and economically. It is our patriotic duty to integrate them in the mainstream of social life by tackling the problem on a war footing and wiless ihat is done our economic and social revolution will remain incomplete.'(1)

83. Shri P.C. Bedwa, Member Faculty Of Law and Board of Studies in Law, Lecturer. Guru Nanak Dev University, Amritsar, opined as under:--

'It is a matter of regret that even after three decades since the advent ofthe Constitution, the objectives envisaged for the economic and social advancement of these classes of people have remained mere a platitude. This paper, therefore, intends also to stimulate thinking in the direction of ameliorating the economic and social conditions of the Scheduled Castes, Scheduled Tribes and other backward classes'.(1)

'It is a matter of deep concern that even three decades after the advent of constitutional guarantees, the social and economic conditions of the weaker sections of our society, particularly the Scheduled Castes, Scheduled Tribes and other Backward classes continue to be object. They are still subject of many forms of discrimination and have been victim of foul atrocities. The average income of most of these people is below the subsistence level'.(1)

84. Shri Samsuddin, Lecturer in Law, Maharishi Dayanand University, Rohtak, in his paper on Socio-legal Implications of the Constitutional Safeguards given to the Scheduled Castes. Scheduled Tribes and other Backward Classes in India, opined as under :--

'The Constitution of India enjoins upon the Government to give special attention to the uplift of the Scheduled Castes, Scheduled Tribes and other Backward Classes. It is in view of the importance rather supremacy of 'The Universal Declaration of Human Rights' that the framers of the Indian Constitution embodied multiple provisions for protecting the interests of various kinds of weaker sections in India.'(1)

'Various steps have been taken to promote the educational and economic interests of the backward classes. Scheduled Castes and Scheduled Tribes; but much more remains to be done. These classes are still the victims of social injustice. To some extent, they still remain segregated from so-called higher communities. The barber still remains a barber; the Harijan remains a Harijan. A greater deal remains to be done to integrate these classes with the rest of the nation'. (1) :

'Since independence, the maximum benefit of these constitutional protections have been given to a determined group rather concentrated class .within Sche-duled Castes, i.e., chamars. A scavenger still remains a scavenger though they are termed under the category of Scheduled Castes. This is all due to selfish political gains. They are being discriminated despite the constitutional safeguards because they don't have their leaders to represent. Therefore, state should undertake the responsibility to look into woeful tales of atrocities of the down trodden masses of India, so as to enable them to remove their inherent inferiority complex, humiliation and several other disabilities. Last but not the least, it can be safely said that something has been achieved in this regard but much remains to be done.'(1)

85. My conclusions, therefore, are as follows:

(1) that the fortyfifth amendment of he Constitution of India extending the erm for reservations in Lok Sabha and Vidhan Sabhas for Scheduled Castes and Tribes from 30 years to 40 years is intra vires, constitutional and valid;

(2) that the above amendment instead of infringing fundamental right of quality of the Scheduled Castes and Tribes, ensures them equality and upgrades them as Class I citizens and brings them in the main stream of the country.

(3) that the reasonableness and fairness of the above amendment is not justiciable. Further even a problem into that prohibited field reveals that there is ample justification for the forty-fifth amendment which is both, fair, just, reasonable and not only proper, but indispensable in the Indian Constitution;

(4) that the forty-fifth amendment nowhere infringes any essential features of the basic structure of the Indian Constitution. Contrary to it, retention of the safeguards and protection of special reservations in Lok Sabha and Vidhan Sabhas for Scheduled Castes and Tribes, only strengthens essential features of a real democracy with equal opportunity and equal status and justice, political, social and economic to them.

86. As I am not satisfied that Shri Vichitra has made out a prima facie case for further adjudication. I am of the opinion that issuing of the notice to the Attorney General and Union of India for deciding the validily of forty-fifth amendment in the Indian Constitution, is not necessary.

87. In the net analysis, the forty-fifth amendment in the Indian Constitution, in its broad repercussion, implications and dimensions results in a system in which people practice equality as a way of life and dispense justice without discrimination,

88. This equality was indicated way back by Lord Krishna in 'Geeta' in the following form:

'Chaturvarnyam maya srishtam guna Karma vibhagashah'. (Geeta)(1).

89. Dr. Radhakrishnan in his famous Upton lectures of 1926 observed:

'There can be no real freedom in any section or class in a society so long as others are in bondage. It is truly democratic ideal that is uttered in the words, 'May all cross safely the difficult places of life, may all see the face of happiness, may all reach that right knowledge, may all rejoice everywhere', (sarvah taratu durgani sarvah bhadrani pasvatu

sarvas tad buddhim appam sarvas sarvata nandatu)(3)

Dr. Radhakrishnan further. observed: 'The Bhagavata makes out that there is only one God. Manu says that all men are born unregenerate (sudra) by the first or physical birth, but become regenerate (dvija) by the second or spiritual birth. Caste is a question of character. 'One becomes a Brahmin by his deeds not by his family or birth; even a Chandala is a Brahmin if he is of pure character.' (Brahmadasa brahma dasa brahmaiveme kitavah: ix. 14.48). Some of the great risis worshiped by the Brahmins are half-castes and hybrids. Vasistha was born of a prostitute, Vyasa of a fisherwoman. Parasara of a Chandala girl. (ganikargarbhasambhuto vasisthas cha mahamunih tapasa brahmano jatah samaskaras tatra karanam, jatau vyasastu kaivartyah svapakyastu parasarah, bahavo nyepi vipratvam prapta ye purvam advijah). Conduct counts and not birth.'(3)

The Rigveda preaches equality--

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osnksadh Lof.kZe lfDr;kW] lEiknd&ia; Jhjke 'kekZ] vkpk;Z A v[k.M T;kfr izdk'ku&eFkqjkA;

90. Dr. Radhakrishnan summed up the ancient struggle of equality as under:

'The struggle of equality has been with us from the beginning of India's history. We have one evidence of it in the feud between Vasistha, the pillar of orthodoxy and the enemy of all innovation, and Visvamitra, the leader of the progressives and the champion of freedom and liberty. While the conservative Vasistha wanted the Vedic religion to be confined solely to the Aryans. Visvamitra tried to universalise it. The movement of the Upanisads was in spirit a democratic one. Buddhism, as is well known, undermines all hierarchical ideas. Samkara's philosophy was essentially democratic, and Ramanuja honoured members of the Sudra and the Panchama classes as Alvars.'(3)

91. Bhagvad Geeta's eternal concept of 'equality' was echoing in the voice of Pandit Jawaharlal Nehru when he introduced the first amendment of the Constitution. Quoting Nehru, Shri J.N. Kaushal in his welcome address in the Chandigarh Seminar said:--

'If any kind of an appeal to individual liberty and freedom is construed to mean as an appeal to the continuation of the existing inequality, then you get into difficulties. Then you become static, unprogressive and cannot change and you cannot realise the ideal of an egalitarian society which I hope most of us aim at.' (Nehru)

Shri Kaushal then observed as under:--

'Unless the pivotal position of the Directive principles is not understood we would not be able to fulfil our commitment to the teeming millions of India. To quote Nehru again,

'The service of India means the service of the millions who suffer. If means ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe out every tear from every eye.'

92. Shri Kaushal then gave the following clarion call:--

'And most eyes still have tears in them. It is in this background that the objectives and mission of the Seminar is to be understood and I repeat mission, as this Seminar has been organised with a mission. We must wake up from our slumber lest it is too late.' (Directive Principles Jurisprudence 1982 by Paras Diwan--V. Kumar--Welcome Address of Sh. Jagannath Kaushal, M.P. Senior Advocate, p. 15, Vol. 1).

93. May I hope that 'Vichitra' would now realise that what he was pleading for was 'inequality', and oppression of his own segment.

94. The rejection of his plea would bring 'equality' and act as 'blessing in disguise', and real and effective homage to Article 46.

95. Vichitra is unfortunately labouring under the fallacy and obsolete dogmatic, reactionary, outdated and outlived principles laid down by U.S. Supreme Court, wherein the minimum wages statute was held unconstitutional in God Charles's case. 322 US 304 (sic) on the ground that a citizen of U.S. may sell his labour for what he thinks best, just as an employer can sell his iron or coal. The U.S. Supreme Court itself has become wiser after that and never followed it. I refuse to even look into it in this enlightened age of 1982.

96. In this enlightened age of equality, if Godcharles case is followed, the logical termination would have been that if an employer can sell his iron or coal at any price on account of equality clause and purchase labourers by exploiting poverty then not only bonded labour would be permissible, but the flesh trade would also be constitutional as a 'call girl or 'prostitute' would plead freedom of her fundamental right of liberty and equality and profession of selling her 'flesh' for coins. Then all progressive socio-economic legislations ushered for emancipation of down trodden and poor and weaker sex would become unconstitutional, and the directive to realise the ideal of egalitarian society would perish. As I have already observed, U.S. Supreme Court has also not followed their earlier judgments striking down minimum wages, minimum hours and new deal social legislations; after President Roosvelts clarion call to the Nation, resulting in the saying 'a stitch in time saves nine', and it is too much for Vichitra to expect that I would strike down 45th Amendment now, for perpetuating inequality, oppression and exploitation. All the pleas raised by Shri Vichitra, therefore, deserve to be rejected in limine.

97. And now a back drop of my telltale of woe and suffering of search.

98. Before parting with this judgment. I cannot resist the compelling impulse of mentioning that the echo of atrocities on Scheduled Caste and Scheduled Tribes and usually heard in the halls of Legislatures, where the air atmosphere and walls are blood smeared with cries and tales of their woes and sufferings. The forty-fifth amendment bill was passed by all the 416 Sansads' present in the Lok Sabha in a chorus of 'Ayes would have it' with not a single voice OF dissent, as 'noes' drew blank, on 24th January, 1980. But the irony and paradox is that there is no one in the Secretariat of the Vidhan Sabha and not even the committees constituted for Scheduled Castes and Tribes who can preserve the constitutional survey under Article 338 made by the Scheduled Caste and Tribe commissioner from 1952 up to date

99. It was most shocking, surprising and revealing experience to find that my almost one month persistent sending of the reminders, messengers, and telephonic talks through my staff for obtaining reports of the Scheduled Caste and Tribe Commissioner issued every year from 1952 to 1981, there was conspicuous coldness indifference and lethargy in Assembly Library, Secretariat, Public Libraries, Social Welfare Department and other Government and Semi-Government agencies. None of them could send me the requisite reports and even after hectic effort, all that I could get from Assembly Library was Part II report of the years 1957-58 and 1962-63 only.

100. The tragic plight of this untouchable segment continues as they are outcasts even in the libraries of the High Court, University, Legislative Assembly. Law Department, and the Government functionaries. None of them care to obtain and preserve these yearly reports much less to study and implement them. What a poor homage is being paid to Article 46 by all concerned including the Champions of the Scheduled Caste and Tribes, can be assessed from the fact, that most of these valuable reports which got a treasure of all informations and the statistics about the annual functioning of the various legislations and constitutional protection for Scheduled Castes and Tribes, are not even available anywhere in Jaipur, the Capital of Rajasthan, even though before a year a 'Harijan' adopted the office of the Chief Minister.

101. No response was received even from the Lok Sabha Secretariat, to the letter addressed for obtaining information. I have, therefore, collected some statistics from the meagre resources, in the 'chart' produced earlier in this judgment about the political representation of Scheduled Castes and Tribes, on general seats in Lok Sabha and Vidhan Sabhas from the years 1952 to 1980. How can it be believed that suggestions and directions, suggested in these reports based on data, are being looked into and are implemented and enforced

102. It is a very poor reflection on all concerned and I am constrained to observe than it has taken more that about one month, after every day devoting a few hours to make search and research about the statistics which I have collected with great difficulty and handicaps in the above chart. This pathetic tragic plight and indifference towards the Scheduled Castes and Tribes, by an the three wings of the State, legislative, executive and the Judiciary, only reassures my above conclusion that forty-fifth amendment was not only reasonable but indispensable, in these tale-telling circumstances in which we are living. It is expected that my above observations would at least result in drawing pointed attention of all concerned towards pressing necessities of following constitutional mandate of Article 46 by obtaining, studying and implementing reports under Article 338 of the Constitution.

103. The result of the above discussion is that this writ petition fails and is hereby dismissed summarily.

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