CONSTITUTIONAL VALIDITY OF RESERVATIONS BEYOND 50 PERCENT
LEGAL SCRUTINY OF NINTH SCHEDULE LAWS
The Government of Tamil Nadu enacted the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments or posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994), which, inter alia, provided for 69 percent reservations in admissions to educational institutions in the State for persons belonging to the Scheduled Castes and Scheduled Tribes and the Backward Classes. COMMON CAUSE, challenged the Act as the Supreme Court of India had capped reservations of all kinds at 50 percent. We also challenged the constitutional validity of the Ninth Schedule laws on the touchstone of the Basic Structure doctrine. The Hon'ble Supreme Court of India has in its judgement dated January 11, 2007 held that the Ninth Schedule laws are subject to legal scrutiny. Our petition in the specific matter of the Tamil Nadu Act will be disposed of separately.
The events leading to the filing of our petition, its Synopsis and the operational part of the Supreme Court judgement are reproduced below for the benefit of our readers.
CHRONOLOGY OF EVENTS
As a culmination of a series of Constitution Bench judgments of the Supreme Court limiting the power of the State to provide for reservations to 50% in consonance with the principle of equality of status and opportunity enshrined in the Constitution of India, the Supreme Court in the Indira Sawhney vs. Union of India JT 1992 (6) SC 273 laid down the maximum limit up to which the State is permitted to provide reservations as 50%.
The Tamil Nadu Government Gazette, published the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments or posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994), which Act has, inter alia, provided for 69 percent reservation in admission to educational institutions in the State and in services under the State, for backward classes of citizens and for persons belonging to the Scheduled Castes and Scheduled Tribes.
Constitution (Seventy-sixth Amendment) Act, 1994 amended the Constitution by which the basic feature of the Constitution of India enshrined in the principle of equality and the fundamental rights under Article 14, 15 and 16 of the Constitution was damaged and destroyed by including in the Ninth Schedule of the Constitution of India, as entry no. 257A, the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or posts in the services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994). Similar ultra vires attempts were made by some other states, especially the State of Karnataka, by violating the 50% limit of reservation mandated by the Constitution and directed by the Supreme Court in Indira Sawhney case and were restrained in time by the Supreme Court.
Writ Petition filed.
The present public interest writ petition is filed by COMMON CAUSE, being aggrieved by the arbitrary, unreasonable and ultra vires provisions of the Constitution (Seventy-sixth Amendment) Act, 1994, by which the basic feature and structure of the Constitution of India enshrined in the principle of equality, the fundamental rights under Article 14, 15, 16, 21 and 32
of the Constitution, the Constitutional status and preeminence of the Union judiciary, the unitary structure, the unity and integrity of India and the security and sovereignty of India are damaged and destroyed by including in the Ninth Schedule of the Constitution of India, as entry no. 257A, the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments or Posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994), which Act has, inter alia, provided for more than 50 percent, i.e., 69 percent reservation in admission to educational institutions in the State and in services under the State, for backward classes of citizens and for persons belonging to the Scheduled Castes and Scheduled Tribes.
The petitioner respectfully seeks also to challenge the ultra vires, unconstitutional, unreasonable and mala fide attempt of the State of Tamil Nadu to attract the protective umbrella of the provisions of Article 31-C of the Constitution, which is not available to the said Tamil Nadu Act in spite of the declaration in Section 2 thereof, since the declaration with regard to Articles other than 39 (b) & (c) is irrelevant and the objects mentioned in clauses (b) and (c) of Article 39 do not have any close or reasonable nexus or connection with the said statute. This has been consistently held by this Hon'ble Court in a catena of cases viz., Keshavanand Bharati vs. State of Kerala 1973 Sppl. SCR 1, Minerva Mills vs. Union of India 1981 (1) SCR 206, Sanjeev Coke Manufacturing Co. vs. Bharat Coking Coal Ltd., 1983 (1) SCC 147 and State of Tamil Nadu vs. L. Abu Kavur Bai 1984 (1) SCR 725. Presuming though not conceding that Article 31-C is attracted to protect the Tamil Nadu Act in view of the declaration therein, only Article 14 and 19 are "out of harms way". Still, the Tamil Nadu Act will come under the teeth of Article 16, 15, 21, 32 and the basic feature of the Constitution, namely the principle of equality.
The following prayers are made in the petition:
a) Issue appropriate directions or orders or writs declaring the 76th amendment to the Constitution which inserted the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and appointments or posts in the services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994) as entry no. 257A in the Ninth Schedule as void.
b) Issue appropriate directions or orders or writs declaring the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and appointments or posts in the services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994) as ultra vires and void to the extent it provides for reservations above 50%.
c) issue appropriate directions or orders or writs directing the Union of India to ensure that the reservations under the Central and State Governments shall not exceed 50%.
d) Pass such other further order or orders as this Hon'ble Court may deem proper. in the facts of circumstances of the case.
SUPREME COURT JUDGMENT
In conclusion, we hold that:
i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.
ii) The majority judgment in Kesavananda Bharati's case read with Indira Gandhi's case, requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine, the validity of the challenge. iii) All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.
iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the "rights test" and the "essence of the right" test taking the synoptic view of the Articles in Part III as held in Indira Gandhi's case. Applying the above tests to the Ninth laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.
v) This is our answer to the question referred to us vide Order dated 14th September, 1999 in I.R. Coelho vs. State of Tamil Nadu /_(1999) 7 SCC 580_/
vi) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/ infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, 19 and the principles underlying thereunder.
vii) Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.
viii) We answer the reference in the above terms and direct that the petitions/ appeals be now placed for hearing before a Three Judge Bench for decision in accordance with the principles laid down.
New Delhi Signed by Y.K. Sabharwal, CJI and others
January 11, 2007
Views of two Senior lawyers (Constitutional experts) in the matter are also reproduced below:-
COURTING THE RULE OF LAW
An array of cases have raised strong questions about the rule of law in our democracy. The rule of law is the bedrock of all liberties, an unamendable basic feature of our Constitution. John Finnis, professor of law and legal philosophy at Oxford University, describes the rule of law as "the name commonly given to the state of affairs in which a legal system is legally in good shape". Our legal system is , plainly speaking, in an appalling shape.
The Jessica Lall verdict was, for us lawyers, an unsurprising product of a dysfunctional criminal justice system. The constitutional guarantees of life and liberties include the right to a "fair trial". A delayed trial is not a fair trial - neither to the victims and their relatives waiting endlessly for justice, nor to the accused who languish in overcrowded jails.
A system in which there are over three million cases pending in high courts and over 20 million in trial courts can be fairly described as having collapsed. Successive governments have done virtually nothing to address the causes; lack of judge strength and lack of infrastructure. The political system no longer appears to be on the same side of late there is visible antipathy towards the rule of law and courts except where it can be used to embarrass political rivals.
This attitude is prompted at least in some measure, by increasing criminalisation of politics, and by the perception that the courts are a let and a hindrance in achieving populist measures (for instance, reservations) or using populist tactics (like strikes and bandhs).
Populist causes, in a fractured polity, tend to have a face-off with the law. Mamata Banerjee's cause is a case in point. Populist methods seriously threaten the foundations of the rule of law. Didi did not assist the aggrieved farmers (if they are truly aggrieved) to resort to legal remedies to vindicate their grievances. The courts have not only the power but the duty to deal with violation of the rights of the downtrodden of course they are not a vehicle to achieve a political agenda.
A hunger strike until death is demanding a result at the threat of a criminal act (that is, suicide), which is blackmail. If political blackmail gains legitimacy, it will be a sure step towards anarchy. It is blasphemous to compare these threats to Gandhiji's satyagraha which was directed against a foreign monarch who ruled India. Besides, nobody could question the `satya' of the `satyagraha'?
The courts are duty-bound to enforce the law even if it has unpopular consequences. If the Supreme Court has to enforce the town planning law on a street by street basis, it is not excessive activism but a testimony to an abysmal failure of those whose primary duty it is to enforce the law.
The argument that the courts are neither meant nor equipped to run the country, though true, is a mere attempt to obfuscate the real issues. The real issue is the gradual decline in the credibility of the other institutions of governance. Egregious corruption has eroded public confidence in the other institutions the elected representatives, the civil service and the police. The judiciary and in particular the Supreme Court is seen as the only surviving hope.
The recent criticism of the Supreme Court is not so much out of concern for institutional comity and separation of powers, but of concern over judicial review of `sensitive' matters.
The Congress government of Narasimha Rao found no `activism' in the Supreme Court overseeing the shilanayas in December, 1991. A little known fact is that the then attorney told the court that the armed forces were ready, awaiting the court's directions. If the army was to fire upon the kar sevaks, it would be expedient if their deployment was ordered by the Supreme Court. Two judgments that have caused especial alarm tell their own story. These are the `sealing case' a direction to adhere to the town planning laws in Delhi (notwithstanding its unpopular consequences, not to mention its consequences on properties of those in office, as exposed in The Indian Express) and the judgment holding that no sanction from the government is required to prosecute a minister on the grounds that he has received a bribe, since receiving bribes is no part of their official duties.
No critic has been able to point out as to how the court went beyond the established parameters of judicial review. The objection clearly is to the court directing the government to place the law above populism or political interest.
The attempts of the Supreme Court to ensure that the forest advisory committee includes established environmentalists prompted an additional solicitor general to suggest that the court does not respect other institutions. He is partly right. Corruption and abuse of power have become institutional, and that is one institution the court, mercifully, does not respect. India's survival as a democracy has been in itself a great achievement. Unfortunately, somewhere along the way, the institutions have lost their savour. We have faced and overcome many challenges. The challenge to restore rule of law to its rightful place is much simpler. The remedy is threefold.
First, re-establish the credibility of the civil services and the police by ensuring that they run the country in accordance with the law and policies (not diktats) made by the elected representatives. Secondly, all populist methods incompatible with the rule of law must be eschewed. Let's follow Gandhiji's `means justify the ends' philosophy. Populist methods or agendas must be within the framework of the law, and populist laws must be within the framework of the Constitution. Third, we need an allocation of sufficient resources to the justice delivery system.
The media did yeomen service in the Jessica Lall case. This momentum must not be lost. The media can create sufficient public awareness that will ultimately force the pace of these reforms.
We can only forget at our peril the warning of the great jurist John Locke, who said, "Wherever law ends, tyranny begins".
(Courtesy : Indian Express dated 9th January, 2007)