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UNIT -I
Salient Features of Indian Constitution
A Written Constitution: For a federal State, the Constitution must necessarily be a written constitution that defines the relation between the Central Government and the Regional Governments; demarcates the sphere of each, and is paramount to the constitutions of Regional Governments.
Lengthy Document: The Constitution of India has the distinction of being the most lengthy and detailed constitutional document, the world has produced so far. The original Constitution contained as many as 395 Articles and 8 schedules.
Democratic Republic: The Preamble to the Constitution declares that India is a Sovereign Democratic Republic. It has been argued that the word “Democratic” used before the word “Republic” is redundant. But it is not so, for democracy does not involve the existence of a republican form of government.
It may be obtainable under a hereditary monarchy as well, as in the case of Britain. The President of India is indirectly elected by the representatives of the people for a period of five years. The Council of Ministers, which aids and advises the President, is constituted from the party or parties commanding a majority in the Parliament.
A Federal Polity with a Unitary Bias: In accordance with the federal set-up there has been a division of powers between the Centre and the States. There are three lists: The Union List, State List and Concurrent List and the residuary powers have been given to the centre.
Legislation on the subjects mentioned in the Central List is the responsibility of the Centre, whereas legislation for the subjects mentioned in the State List is the responsibility of States. Both the Centre and the States can enact on the subjects mentioned in the Concurrent List, but when the laws passed by the Centre and the State are at variance with each other, Central law will get precedence over the State law and latter will be repugnant to that extent.
India also has a Supreme Court which is the guardian of our Constitution and decides all disputes which might arise between the Centre and the States. The residuary power to make laws on subjects that are not mentioned in any of the lists, like the cyber laws, rest completely with the centre.
But there are also certain peculiar features of our federal system which have made the critics to say that India is over-centralised or that India is quasi-federal. Few have even said that India is unitary in spirit but federal in structure. Unlike other federations, the Union has a right to change the boundaries of the States, divide them or completely end up their existence in the existing territorial form.
The heads of the States i.e. the Governors are appointed by the President and are his agents in the States. They are responsible to him for their acts of omission and commission. The governor can reserve any bill passed in the state, legislative for the assent of the Union that may delay it or lead to a complete veto by the President.
Articles 33 and 34 authorize the parliament to protect persons in service of the union or state with respect to any action taken by them during martial law to maintain or restore order that further strengthens the union’s control over states.
The Centre can, at any time, declare emergency in the States and with that declaration, can take over the administration of that State in its control. Moreover, the country’s financial set-up and structure is such that the States are financially dependent on the Centre.
Single Citizenship: In a federation there is usually dual citizenship. A citizen belongs to the State in which he is born and also enjoys the citizenship rights of the federation.
This is based on the principle that the states in a federation are of course units, but do not, at the same time, give up their individual identity. But in India there is only one citizenship. Citizens belong to the Indian Union and not to any state.
More Flexible than Rigid: Another distinctive feature of the Indian Constitution is that it seeks to impart flexibility to a written federal constitution. The amendment of only a few of the provisions of the Constitution requires ratification by the State Legislatures and even then ratification by only 1/2 of them would suffice (while the American Constitution requires ratification by 3/4th^ of the States).
The rest of the Constitution may be amended by a special majority of the Union Parliament. On the other hand, the Parliament has been given the power to alter or modify many of the provisions of the Constitution by a simple majority as is required for general legislation. The flexibility of our Constitution is illustrated by the fact that since its working, it has been amended 94 times (till July 2009).
Balance between Judicial Supremacy and Parliamentary Sovereignty: An independent Judiciary with the power of judicial review is a prominent feature of our Constitution. The harmonization which our Constitution has effected between Parliamentary Sovereignty and a written Constitution with a provision for Judicial Review is an important achievement of the framers of our Constitution. The Indian Constitution adopts the via media between the American system of Judicial Supremacy and the English principle of Parliamentary Supremacy, by endowing the Judiciary with the power to declare a law as unconstitutional if it is beyond the competence of the Legislature as per the distribution of powers provided by the Constitution or if, it is in contravention to the fundamental rights guaranteed by the Constitution.
Further, the major portion of the Constitution is liable to be amended by the Union Parliament by a special majority, if in any case the Judiciary proves to be too obstructive. The balance between Parliamentary Sovereignty and Judicial Review was however seriously disturbed, and a drift towards the former was made by the Constitution (42nd Amendment) Act, 1976.
Universal Adult Franchise: The introduction of adult suffrage without qualifications of any kind was the boldest step taken by the Constitution-makers and it was an act of faith they had placed in the common man. Article 326 of the
It seeks to remove all inequalities created by inequalities in the possession of wealth and opportunity, race, gender, caste and religion by providing just and humane conditions of work, maternity relief, leisure and cultural opportunity to every individual, prevention of exploitation in labour and industry, free education for all and the like.
Incorporation of Fundamental Duties: It was with the passing of Forty-Second Constitutional Amendment Act that a Chp on Fundamental Duties was incorporated in the Constitution with the addition of a new Article (Art. 51 A). The Article provides that every citizen of India has specific Fundamental Duties, that (s) he ought to perform.
Emergency Provisions: Article 352, 356 and 360 of the Constitution provide the provisions for emergency. According to these provisions when the Head of the State is dissatisfied with the administration of the country or a part thereof, in accordance with the normal procedure laid down in the Constitution, (s)he can declare emergency and take the administration of the country or a part thereof, in his/her own hands.
Protection of Minorities: The Constitution has provided for a system of reservation of seats for cultural minorities, in all spheres of life. This is, however, a temporary provision and it has been mentioned in the Constitution that as soon as it is felt that these minorities have come at par with other sections of society, this reservation will cease to exist.
During the pre-independence era, in India, there was a system of reservation of seats for religious minorities. The system proved to be very dangerous and ultimately resulted in the partition of the country. This system has however been completely abandoned and now there is no reservation for religious minorities.
Preamble to the Constitution of India
The original text of the Preamble , before the 42nd Amendment) of the Constitution The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document. The hopes and aspiration of the people as well as the ideals before our nation are described in the preamble in clear cut words. It may be considered as the soul of Constitution. The preamble can be referred to as the preface which highlights the essence of the entire Constitution. It was adopted on 26 November 1949 by the Constituent Assembly.
It is based on the Objectives Resolution which was drafted and moved in the Constituent Assembly by Jawaharlal Nehru on 13 December 1946.[1]^ The preamble-page, along with other pages of the original Constitution of India, was designed and decorated solely by renowned painter Beohar Rammanohar Sinha of Jabalpur who was at Shantiniketan with acharya Nandalal Bose at that time. Nandalal Bose endorsed Beohar Rammanohar Sinha's artwork without any alteration whatsoever. As such, the page bears Beohar Rammanohar Sinha's short signature Ram in Devanagari lower-right corner.
That the preamble is not an integral part of the Indian constitution was declared by the Supreme Court of India in BeruBari case therefore it is not enforceable in a court of law. However, Supreme Court of India has, in the Kesavananda case, overruled earlier decisions and recognised that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present
themselves. In the 1995 case of Union Government vs. LIC of India also, the Supreme Court has once again held that Preamble is the integral part of the Constitution.
As originally enacted the preamble described the state as a "sovereign democratic republic". In 1976 the Forty-second Amendment changed this to read "sovereign socialist secular democratic republic".[2]
These are the opening words of the preamble to the Indian Constitution
“ 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; and to promote among them all 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. ”
The Preamble reflects the philosophy as well as fundamental values of Indian Constitution. It clarifies four important aspects
- It mentions that the Constitution derives its Authority from the people of India
- It declares India to be Sovereign, Socialist, secular, Democratic and Republican country.
- It clarifies the objectives of the Constitution are Justice, Liberty, Equality and Fraternity.
- It states the date of Adoption i.e., 26 November 1949
The enacting words, "We, the people of India ...in our constituent assembly ...do here by adopt, enact and give to ourselves this constitution", signify the democratic principle that power is ultimately rested in the hands of the people. It also emphasises that the constitution is made by and for the Indian people and not given to them by any outside power (such as the British Parliament). The phrase "we the people" emphasises the concept of popular sovereignty as laid down by J. J. Rousseau: All the power emanates from the people and the political system will be accountable and responsible to the people.
Sovereign The word sovereign means supreme or independence. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people. She allies in peace and war. The Popular sovereignty is also one of the basic structure of constitution of India. Hence, Citizens of India also enjoy sovereign power to elect their representatives in elections held for parliament, state legislature and local bodies as well. People have supreme right to make decisions on internal as well as external matters. No external power can dictate the government of India. India’s membership of the commonwealth or of the United Nations does not impose any external limit on her sovereignty. The Commonwealth is a free association of sovereign Nations. It is no longer British Commonwealth. India does not accept the British Queen as the head of state. The sovereignty empowers India to either acquire a foreign territory or cede a part of its territory in favour of a foreign state.[3]
Socialist
Fraternity This refers to a feeling of brotherhood & a sense of belonging with the country among its people. It embraces psychological as well as territorial dimensions of National Integration. It leaves no room for regionalism, communalism, casteism etc. which hinders the Unity of the State.
Amendablity It has been clarified by the Supreme Court of India that being a part of Constitution, the Preamble can be subjected to Constitutional Amendments exercised under article 368, however, the basic structure cannot be altered.
FUNDAMENTAL RIGHT
ARTICLE 14- EQUALITY BEFORE LAW
Article 14 declares that ‘the State shall not deny to any person equality before the law or equal protection of law within the territory of India.’. Thus article 14 uses the two expressions “equality before law” and “equal protection of law”. The phrase “equality before law” find a place in almost in written constitution that guarantees fundamental right both these expression .both this expression aim at establishing what is called “equality of status” While both the expression are kind of identical but they don’t give similar meaning.
EQUALITY BEFORE LAW Its origin is from America. And somehow its negative concept. It aims at implying the absence of any special privilege by reason of birth, sex, religion etc. in favor of individuals and the equal subject of all the classes to the ordinary law
EQUAL PROTECTION OF LAW Its origin is from British. And somehow it is a positive concept. It aims at equality of treatment in equal circumstances. It means whether someone is P.M. or President he should be deal with same law as normal being deals with
RULE OF LAW The guarantee of equality before the law is an aspect of what Dicey calls the Rule OF Law in England. It means that no man is above the law and that every person whatever be his rank or condition is subject to the jurisdiction of ordinary courts. Rule of law require that no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the object is the securing of the paramount exigencies of law and order.
Professor Dicey gave three meanings of the Rule of Law
- Absence of arbitrary power or supremacy of the law It means the absolute supremacy of law as opposed to the arbitrary power of the Government. In other words-a man may be punished for a breach of law, but he can’t be punish for anything else.
- Equality before law It means subjection of all classes to the ordinary law of land administrated by ordinary law courts. This means that no one is above law all are equal in eyes of law
- Absence of individual liberty There are various constitution that provide individual liberty but not provide method It means that the source of the right of individuals is not the written constitution. U.K. don’t have provision for individual liberty.
Rule of Law in India
1. Supremacy of Law: The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. It implies that a man may be punished for a breach of law but cannot be punished for anything else. No man can be punished except for a breach of law. An alleged offence is required to be proved before the ordinary courts in accordance with the ordinary procedure.
Article 14 applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently, Article 14 does not apply. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted that between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.
Test of Reasonable Classification While Article 14 forbids class legislation it does not forbid reasonable classification of persons, objects, and transactions by the legislature for the purpose of achieving specific ends. But classification must not be “arbitrary, artificial or evasive”. It must always rest upon some real upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. Classification to be reasonable must fulfil the following two conditions
Firstly the classification must be founded on the intelligible differentia which distinguishes persons or thing that are grouped together from others left out of the group Secondly the differentia must have a rational relation to the object sought to be achieved by the act.
The differentia which is the basis of the classification and the object of the act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the act which makes the classification. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory. Thus the legislature may fix the age at which persons shall be deemed competent to contract between themselves but no one will claim that competency. No contract can be made to depend upon the stature or colour of the hair. Such a classification will be arbitrary.
The true meaning and scope of Article 14 have been explained in a number of cases by the Supreme Court. In view of this the propositions laid down in Damia case still hold good governing a valid classification and are as follows.
- A law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by itself
- There is always presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles.
- The presumption may be rebutted in certain cases by showing that on the fact of the statue, there is no classification and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class
- It must be assumed that Legislature correctly understand and appreciates the need of its own people that its law are directed to problem made manifest by experience and that its discrimination are based on adequate grounds
- In order to sustain the presumption of constitutionality the court may take into consideration maters of common knowledge, matters of report, the history of the times and may assume every state of facts which can be conceived existing at the time of the legislation.
- Thus the legislation is free to recognize degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest.
- While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the
notice of the court on which the classification may reasonable be regarded as based, the presumption of constitutionality cannot be carried to extent always that there must be some undisclosed and unknown reason for subjecting certain individuals or corporation to be hostile or discriminating legislation
- The classification may be made on different bases e.g. geographical or according to object or occupation or the like.
- The classification made by the legislature need not be scientifically perfect or logically complete. Mathematical nicety and perfect equality are not required.
- Equality before the law does not require mathematical equality of all persons in all circumstances. Equal treatment does not mean identical treatment. Similarly not identity of treatment is enough.
- There can be discrimination both in the substantive as well as the procedural law. Article 14 applies to both. If the classification satisfies the test laid down in the above propositions, the law will be declared constitutional. The question whether a classification is reasonable and proper and not must however, be judged more on common sense than on legal subtitles.
Article 15- PROHIBITION OF DISCRIMINATION Article 15 of the Constitution provides that no citizen shall be subjected to discrimination in matters of rights, privileges and immunities pertaining to him. This Article lays down:
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, (2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to: a. Access to shops, public restaurants, hotels and places of public entertainment, or b. 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. (3) Nothing in this Article shall prevent the State from making any special provision for women and children. (4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
The guarantee under Article 15 is available to citizens only and not to every person whether citizen or non-citizen as applicable under Article 14 of the Constitution.
Article 15 directs that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. Any law discriminating on one or more on these grounds would be void. The word, “only” has been purposely used In the Article.
Discrimination based on one or more of these grounds and also on other grounds or grounds will not be affected by Article 15 (1). It means that if one or more of the specified grounds is combined with a ground not mentioned In Article 15 (1); the laws will be outside the prohibition contained in Article 15 (1). Article 15 (1) prohibits discrimination on the ground of birth and not that of residence. A State can, therefore, grant concessions to its residents in matters of fees in an educational institution.
The court observed that in the absence of any law to the contrary, it is open to the government to impose such conditions which would make the reservation effective for the advancement of candidates of such classes.
The court held that the executive order completely relaxing the minimum qualifying marks was not volatile of the Regulation and Article 15 (4) of the Constitution.
In Mandal Commission case, the Supreme Court by a majority of 6-3 has held that the sub-classification of backward classes into more backward castes and backward castes for the purposes of Article 16(4) can be made. But as a result of sub-classification the reservation cannot exceed more than 50%. The distinction should be on the basis of degrees of social backwardness.
Article 16. Equality of Opportunity in matters of public Employment. :-
(1) There shall be quality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of , or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the service under the State. (4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the service under the State.
(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in (4) or Clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling fifty per cent reservation on total number of vacancies of that year. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. Art. 16(1) is a facet of Art. 14. Arts. 14 and 16(1) are closely inter-connected. Art. 16(1) takes its roots from Art. 14. An important point of distinction between Arts. 14 and 16 is that while Art. 14 applies to all persons, citizens as well as non-citizens, Art. 16 applies only to citizens and not to non-citizens. The goal of Articles 14 and 16 is limited to equality among comparables, a necessary implication of which is permissibility of reasonable classification, having nexus with the object to be achieved. Art. 16 deals with a very limited subject, viz., public employment. The Scope of Art. 15(1) is much wider as it covers the entire range of state activities. The ambit of Art. 16(2) is restrictive in scope
than that of Art. 15(1) because Art. 16(2) is confined to employment or office under the state, meaning services under the Central and State Governments and their instrumentalities, Art. 15 being more general in nature covers many varied situations of discrimination. Further, the prohibited grounds of discrimination under Art. 16(2) are somewhat wider than those under Art. 15(2) because At. 16(2) prohibits discrimination on the additional grounds or descent and residence apart from religion, race, caste, sex and place of birth. In Clause (1) the general rule is laid down hat there shall be equal opportunity for citizens in matters relating to ‘employment’ or ‘appointment to any office’ under the State. What is guaranteed is the equality of opportunity. Clause (2) lays down specific grounds on the basis of which citizens are not to be discriminated against each other in respect of any appointment or office under the State. The scope of clause (1) of Article 16 is wider than the scope of clause (2), because discrimination on grounds other than those mentioned in clause (2) of the Article 16 has to be weighed and judged in the light of the general principles laid down in clause (1). Under Clause (3) Parliament is competent to regulate the extent to which it would be permissible for a State to depart from the law laid down in clause (2). It is Parliament alone which can prescribe such conditions, and that too in regard to State and not the Union appointments.
Explaining the nature of Art. 16(4), the Supreme Court has stated that it is “an enabling provision” conferring a discretionary power on the state for making any provision or reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the service of the state. Art. 16(4) neither imposes any constitutional duty nor confers any Fundamental Right on any one for claiming reservation.
The equality of opportunity guaranteed by Art. 16(1) is to each individual citizen of the country while Art. 16(4) contemplates special provision being made in favour of the socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. Accordingly, the rule of 50% reservation in a year should be taken as a unit and not the entire strength of the cadre, service or the unit as the case may be.
In Devadasan case the Supreme Court was required to adjudge the validity of the carry forward rule. The carry forward rule envisaged that in a year, 17½ per cent posts were to be reserved for Scheduled Castes/Tribes; if all the reserved posts were not filled in a year for want of suitable candidates from those classes, then the shortfall was to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years. The result of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29 went to the reserved quota and only 16 posts were left for others. This meant reservation up to 65% in the third year, and while candidates with low marks from the Scheduled Castes and Scheduled Tribes were appointed, candidates with higher marks from other classes were not taken.
Basing itself on the Balaji principle, the Supreme Court declared that more than 50 per cent reservation of posts in a single year would be unconstitutional as it per se destroys Art. 16(1). The Court emphasized that in the name of advancement of backward communities, the Fundamental Rights of other communities should not be completely annihilated. The Court held that as Article 16(4) was a proviso or an exception to Art. 16(1), it should not be interpreted so as to nullify or destroy the main provision, as otherwise it would in effect render the guarantee of equality of opportunity in the matter of public employment under Art. 16(1) wholly illusory and meaningless. The overriding effect of Cl. (4) of Art. 16 on Cls. (1) and (2) could only extend to the making of a
The majority adopted a very liberal attitude in Thomas as regards SCs and STs and backward classes. The result of the pronouncement is to enable the state to give the backward classes a preferential treatment in many different ways other than reservation of posts as envisaged in Art. 16(4). Preferential treatment for one is discriminatory treatment for another and, therefore, it is necessary to draw a balance between the interests of the backward classes and the other classes. The Supreme court has shown consciousness of this danger and, therefore, has laid down a few criteria which a classification must fulfil, viz.: i. The basis of the classification has to be backwardness. ii. The preferential treatment accorded to backward classes has to be reasonable and must have a rational nexus to the object in view, namely, adequate representation of the under- represented backward classes; iii. The overall consideration of administrative efficiency should be kept in view in giving preferential treatment to the backward classes.
It is obvious that in Thomas, the Court has taken a more flexible view of Art. 16(1) than had been taken by it is earlier cases. It is now clearly established that Art. 16(4) does not cover the entire field covered by Arts. 16(1) and (2) and some of the matters relating to employment in respect of which equality of opportunity is guaranteed by Arts. 16(1) and (2) do not fall within Art. 16(4). In Akhil Bhartiya Soshit Karamchari Sangh (Railway) V. Union of India, the Supreme Court again went into the question of reservation in public services vis-à-vis Art. 16. The Court upheld reservation of posts at various levels and making of various concessions in favour of the members of the SC and ST.
The Court reiterated the Thomas proposition that under Art. 16(1) itself, the state may classify, “based upon substantial differentia, groups or classes” for recruitment to public services and “this process does not necessarily spell violation of Article 14 to 16”Art. 1692) expressly forbids discrimination on the basis of ‘caste’. SC and ST are not castes within the ordinary meaning of caste. These are backward human groups. There is a great divide between these persons and the rest of the community.
Thus, reservation in selection posts in railways for SC and St was held valid. The quantum of reservation (17½%) in railway services for SC and ST was held not excessive and the field of eligibility was not too unreasonable. The carry forward rule for three years was held not bad. Under the Carry forward rule, the quota for SC and ST could go up to a maximum of 66% of posts. This was upheld with the remark that figures on paper were not so important as the facts and circumstances in real life which showed that the quota was never fully filled. But this fixation was subject to the rider that, as a fact, in any particular year, there would not be a substantial increase over 50% in induction of reserved candidates. Here the Court took the actual facts, rather than the paper rules, into consideration.
In Indra Sawhney, the Supreme Court has taken cognizance of many complex but very momentous questions having a bearing on the future welfare and stability of the Indian Society. The Supreme Court has delivered a very thoughtful, creative and exhaustive opinion dealing with various aspects of the reservation problem. Basically reservation in government services, is anti-meritocracy, because when a candidate is appointed to a reserved post it inevitably excludes a more meritorious candidate. But reservation is now a fact of life and it will be the ruling norm for years to come. The society may find it very difficult to shed the reservation rule in the near future. But the Court’s opinion has checked the system of reservation from running riot and has also mitigated some of its evils.
Three positive aspects of the Supreme Court’s opinion may be highlighted. One, the over-all reservation in a year is now limited to a maximum of 50%. Two, amongst the classes granted reservation, those who have been benefited from reservation and have thus improved their social status (called the ‘creamy layer’ by the Court), should not be allowed to benefit from reservation over and over again. This means that the benefit of reservation should not be misappropriated by the upper crust but that the benefit of reservation should be allowed to filter down to the lowliest so that they may benefit from reservation to improve the position.
Three, an element of merit has now been introduced into the scheme of reservation. This has been done in several ways, e.g.:
a. promotions are to be merit-based and are to be excluded from the reservation rule
b. certain posts are to be excluded from the reservation rule and recruitment to such posts is to be
merit based;
c. minimum standards have to be laid down for recruitment to the reserved posts. IN facts, the
Courts has insisted that some minimum standards must be laid down even though the same may be lower than the standards laid down for the non-reserved posts.
In his opinion in Indra Sawhney, Jeevan Reddy, J., has emphasized upon the member of a backward class reaching an “advanced social level or status”, he would no longer belong to the backward class and would have to be weeded out. The Court has opined that exclusion of creamy layer, i.e., socially advanced members, will make the class a truly backward class and would more appropriately serve the purpose and object of Art. 16(4). Jeevan Reddy, J., has stated that there are sections among the backward classes who are highly advanced socially and educationally, and they constitute the forward section of the community. These advanced sections do not belong to the true backward class. “After excluding them alone, would be the class be a compact class. In fact, such exclusion benefits the truly backward.”
Accordingly to Jeevan Reddy, J., the exclusion of the creamy layer must be on the basis of social advancement and not on the basis of economic interest alone. It is difficult to draw a line where a person belonging to the backward class ceases to be so and becomes part of the ‘creamy layer’.
In Ashoka Kumar Thakur V. State of Bihar, the Supreme Court has assessed the validity of unrealistically high levels of income or holdings of other conditions prescribed by the Legislatures of UP and Bihar as criteria to identify the creamy layer. For example, while the Supreme Court in the Mandal case has categorically said that the Chiildren of IAS or IPS, etc. without anything more could not avail the benefit of reservation, in the scheme drawn in UP and Bihar, a few more conditions were added for falling in the creamy layer, such as, he/she should be getting a salary or Rs. 10,000/- p.m. or more; the wife or husband to be a graduate and owing a house in an urban area. OR, if a professional doctor, surgeon, lawyer, architect, etc., he should be having an income not less than Rs. 10 lakh, his/ her spouse is a graduate and having family property worth Rs. 20 Lakhs. Similar conditions were added in case of others, such as, traders, artisans, etc. The Supreme Court has quashed these conditions as discriminatory. The Court has ruled that these conditions laid down by the two States have no ‘nexus’ with the object sought to be achieved. The criterion laid down by the two States to identify the creamy layer are violative of Art. 16(4), wholly arbitrary, violative or Art. 14, and against the law laid down by the Supreme Court in the Mandal
excessive nature. Legislation which arbitrarily or excessively invades any of the six freedoms cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedoms guaranteed under Article 19(1) and social control permitted by clauses (2) to (6) of Article 19, it must be held to be wanting in reasonableness. (2) Reasonableness both substantive and procedural: - In determining the reasonableness of a statute, the court would see both to the nature of the restriction and procedure prescribed by the statute for enforcing the restriction on the individual freedom. Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. Absence of provision for review makes the provisions unreasonable. (3) Reasonableness and objective concept: - The reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations. (4) Reasonableness of restriction and not of law: - The court is called upon to ascertain the reasonableness of the restriction and not of the law which permits the restriction. A law may be reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable. (5) Reasonableness includes total prohibition: - The word ‘restriction’ also includes cases of prohibition and the State can establish that a law, though purporting to deprive a person of his fundamental right, under certain circumstances amounts to a reasonable restriction only. (6) Reasonableness and American ‘Due Process’:- The Constitution framers deliberately avoided the use of the expression ‘due process’ with its comprehensiveness, flexibility and attendant vagueness, in favour of the somewhat more definite word, ‘reasonable’, and caution has, therefore, to be exercised before the literal application of American decisions. Our Constitution provides reasonably precise general guidance in this matter. (7) Reasonableness and Directive Principles of State Policy: - That the restrictions are imposed in carrying out the Directive Principles of State Policy is a point in favour of the reasonableness of the restrictions. (8) Reasonableness of Taxes: - Prima facie a tax is not a restriction on any of the freedoms guaranteed under Article 19. Mere excessiveness of a tax is not a ground for challenging it as a restriction on one of the freedom in Article 19(1).
Art. 19(1) (a) guarantees to all citizens the right to ‘freedom of speech and expression’. Under Article 19(2), reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Art. 19(1) (a) not falling within the four corners of Art. 19(2) cannot be valid.
The freedom of speech under Art. 19(1) (a) includes the right to express one’s views and opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film, movie, etc. It thus includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Art. 19(2).
Unlike Art. 19(1) (a) of the Indian Constitution, the provision in the U.S. Constitution has two notable features, viz. (1) Freedom of Press is specifically mentioned therein; (2) No restrictions are mentioned on the freedom of speech unlike Art. 19(2) which spells out the restrictions on Art. 19(1).
The Courts in the U.S.A. have to spell out the restrictions on this right from case to case. The ‘freedom of speech and expression’ includes the right to acquire information and disseminate the same. It includes the right to communicate it through any available media whether print or electronic or audio-visual. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.
Freedom of the press is implied from the freedom of speech and expression guaranteed by Art. 19(1) (a). There is no specific provision ensuring freedom of the press as such. The freedom of the press is regarded as a “species of which freedom of expression is a genus. Thus being only a right flowing from the freedom of speech, the freedom of the press in Indian stands on no higher footing than the freedom of speech of a citizen, and the press enjoys no privilege as such distinct from freedom of the citizen.
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside the government as an additional check on the three official branches- executive, legislative and the judiciary. It is the primary function of the press to provide comprehensive and objective information on all aspects of the country’s social, economic and political life. The press serves as a powerful antidote to any abuse of power by government officials and as a means for keeping the elected officials responsible to the people whom they were elected to serve.
The Supreme Court has emphasized that the freedom of the press is not so much for the benefit of the press as for the benefit of the general community because the community has a right to be supplied with information and the government owes a duty to educate the people within the limits of its resources. Imposition of pre-censorship on publication is, therefore, unless justified under clause (2), violative of freedom of speech and expr3ession. In Brij Bhushan V. State of Delhi, an order issued under East Punjab Safety Act, directing the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before publication ,till further orders, all communal matters and news and views about Pakistan, including photographs and cartoons”, was struck down by the Supreme Court observing, there can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the freedom of speech and expression declared by Art. 19(1) (a).
Das C.J. said in Virendra V. State of Punjab, that “It is certainly a serious encroachment on the valuable and cherished right to freedom of speech if a newspaper is prevented from publishing its own view or views of its correspondents”.
Freedom of speech and expression includes the freedom of propagation of ideas and is ensured by the freedom of circulation. In Romesh Thappar V. State of Madras, the notification banning the entry into or circulation, sale, or distribution in the State of Madras or any part of it of the newspaper entitled ‘Crossroads’ published at Bombay was held invalid because, “without liberty of circulation, the publication would be of little value”.
The right of freedom of speech is infringed not only by a direct ban on the circulation of a publication, but also by an action of the government which would adversely affect the circulation of the paper. In Sakal Papers (p) ltd. V. Union of India, a government order which fixed the number of pages and size which a newspaper could publish at a price was challenged by the petitioners on the ground that it infringed the liberty of the press implicit in the terms of Art. 19(1)(a). The order affected the liberty of the press because its adoption would mean, the petitioners explained, either the reduction in the existing number of pages or raising of the price. In either case, there would be reduction in the volume or circulation of the paper and therefore a direct violation of the liberty of the press. On behalf of the State,
