Constitutional Provisions… and Judicial Interpretative Options

Shafeeq Rehman Mahajir, Advocate, LL.M. (Lon.)

• Modus operandi …

• Introspect to see what we can do• Assess judgments in light of Constitutional provisions and

options• Ask questions about the basic premises on which we have

moved so far• Generate debate and compel moves leading to changes in

status quo• Deliberate before going to SC as issues of reservation in other

states should not be harmed

social contract theory of nations

• The constitutional provisions constitute a contract between peoples

• If that contract is breached, its basis evaporates

• Therefore the original must be adhered to

• Any other view would facilitate a fraud upon a people

Art. 15. Prohibition of discrimination on grounds of religion, race, caste, sex or

place of birth.-

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

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 the Scheduled Tribes.

This therefore proceeds (note the word OR) on the basic fact that aside from scheduled castes and scheduled tribes, there can be socially and educationally backward classes (note the plural) of citizens.

Discrimination AGAINST is precluded – not affirmative action FOR disadvantaged groups

25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the

right freely to profess, practise and propagate religion.

• Right to propagate is therefore enshrined. There is nothing to indicate there can be propagation by mode A and not by mode B, for instance, and therefore any law proscribing conversions would be violative of this provision.

•  • (2) Nothing in this article shall affect the

operation of any existing law or prevent the State from making any law-

•  • (a) regulating or restricting any economic,

financial, political or other secular activity which may be associated with religious practice;

•  

29. Protection of interests of minorities.- 

• (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

• (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

• a : Muslims have a culture and language and script that is distinct

• b : Reservations for SCs/STs who are Hindus result in denial of admissions to Muslims for reasons of caste and religion.

• c : Therefore how do Courts uphold these ?

Constitutional Mandate ?

• The constitution assured reservations for ten years : if it was then postulated that there would be reservations beyond fifty years no one would have accepted the preposterous proposition. Extension of reservations beyond the first ten years is a violation and breach of the contract we the people of India gave ourselves.

Who can be a minority ?

• 30. Right of minorities to establish and administer educational institutions.-

• (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

• Therefore a people, a minority, can be adherents of one religion or speaking one language, and that cannot be a ground for the Courts to strike down affirmative action on the excuse that the benefiting group adheres to only one religion. (Cited as indicative of a minority being based on religion : and if that minority is backward, the mere fact that it also has one religion cannot make affirmative action “extreme…religion-specific…illegal” as our High Court has held)

Directive Principles of State Policy

• 37. Application of the principles contained in this Part.-• The provisions contained in this Part shall not be enforceable by

any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

• While I cannot file proceeding for enforcement, these provisions are by the Constitution declared nevertheless fundamental in governance : fundamental pillars of governance cannot be enforced BUT action founded on them CAN be STRUCK DOWN !! Does this not need reconsideration ? What ought to be the role of the judiciary in this conflict between what ought to be and what is, when attempted, immediately assailed as being “extreme…religion-specific…illegal” ?

…social order for the promotion of welfare…

• 38. State to secure a social order for the promotion of welfare of the people.-

•  • (1) The State shall strive to promote the welfare of the people

by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

•  • (2) The State shall, in particular, strive to minimise the

inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations

…educational & economic interests… other weaker sections

•  • 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.

•  •  

…public employment…

• 16. Equality of opportunity in matters of public employment.-(1) There shall be equality 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.

• (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 services under the State.

• Reservation for SCs/STs (only Hindus) means denial of real equality of opportunity to Muslims for reasons of (absence of) caste and on ground of religion.

…raise… standard of living… prohibition of the consumption … of intoxicating drinks

• 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-

•  • The State shall regard the raising of the level of

nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

51. Promotion of international peace and security

• 51. Promotion of international peace and security.- The State shall endeavour to-

• (a) promote international peace and security;• (b) maintain just and honourable relations between nations;

• (c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and… … …

• International Convention on Civil & Political Rights• International Convention on Protection of Rights of

Minorities• Prohibition of cultural genocide…• Prohibition of ethnic and other genocide…• Promotion of rights of minorities by affirmative action• (The SC – V R Krishna Iyer, J - has held that these must be

implemented.)

Fundamental duty…every citizen… respect ideals of Constitution

• 51A. Fundamental duties.- It shall be the duty of every citizen of India,-

• (a) to abide by the Constitution and respect its ideals and institutions…

• Every citizen would include Hon’ble Judges• What ought to be the role of members of the judiciary in this

conflict between what ought to be and what is, when attempted, immediately assailed ? Should the constitutionally mandated affirmative action be quashed as being “extreme… religion-specific… illegal… fraud on the constitution” ? Does not respect for national institutions entail respect of judgments of higher courts and for constitutional provisions that require honouring treaty obligations…

…five-Judge Bench of this Court at para 251 gave three directions to the State Government…

1. The Government …forthwith initiate the process of reconstituting APBCC… within a period of three months… and seek the opinion of the Commission for inclusion of the Muslim Community into the list of Backward Classes.

• 2.     The Commission shall examine the requisition … opinion within a period of six months

• State Government to lay down the criteria for identification of creamy layer… in terms of the directions of the SC in Indra Sawhney’s case. within … three months or in the alternative follow criteria … Government of India Memorandum dated 08.09.1993 affirmed in AIR 1996 SC 75 and 2000 (1) ALD 54 (SC), in order to facilitate the expeditious disposal of the claim of the Muslim Community for their identification as a Backward Class.”

Procedure of Commission faulted

• The Court has found fault with the procedure of the BCC but while the co-equal bench’s judgment (which the present judgment refers to and relies on) remains unchallenged and has become final, can the mere implementation of that judgment be faulted without first assailing the earlier judgement, which is the basis of the BCC’s action ?

• Judicial propriety requires that if a co-equal bench differs with another the matter is referred to a higher authority, an even larger bench.

• When the earlier co-equal bench sought that BCC give opinion on inclusion of Muslim Community (which has no religion save Islam) in BC list, how could this bench fault BCC’s consideration of the Muslim Community as such, calling it “extreme… religion-specific… illegal… fraud on the constitution” etc.?

• Can a bench over-rule decisions of a co-equal bench ?

Anglo-Indian community : RACE- and RELIGION-specific reservations are okay !

• 331. Representation of the Anglo-Indian community in the House of the People - Notwithstanding anything in article 81, the President may, if he is of opinion that the Anglo-Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People.

•  333. Representation of the Ango-Indian community in the Legislative Assemblies of the States - Notwithstanding anything in article 170, the Governor of a State may, if he is of opinion that the Anglo-India community needs representation in the Legislative Assembly of the State and is not adequately represented therein nominate one member of that community to the Assembly.

• Note Presidential acts are almost always non-justiciable !

“1(b) Whether the Muslims as a group are entitled to affirmative action/social reservations within the constitutional

dispensation ?” the present Court has asked itself while framing questions / issues

• Quote from a Supreme Court judgment :

• Reservations for Muslims or sections/groups among them, in no manner militate against secularism, which is a part of the basic structure of the constitution.

• Therefore, reservations for Muslims as such was also envisaged as a constitutionally permissible action : and yet the judgement says it is “extreme…religion-specific…illegal”. How proper is it for a High Court to go against a Supreme Court ruling… ? From where does a high court judge derive power to determine what a supreme court judge meant by which expression ??

social backwardness ~ poverty nexus

• Social backwardness is in the ultimate analysis the result of poverty, to a very large extent.

•  • The classes of citizens who are deplorably poor

automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens.”

stand that quote : Muslims may be educationally backward but they cannot be termed “socially backward” and expression socially backward can only apply to SCs and STs … : unquote how valid is the contention ?

• In Chapter-VI of the report, one of the questions framed by the Commission was, “What shall be the criteria for including any class of citizens as backward class.” Then refer… various judgments of the Apex Court and this Court. In pages 32 to 35, it summed up its discussion as under;

• “To sum up, the following are the general broad principles indicated by the High Court and Supreme Court for ascertaining social and educational backwardness. The backwardness must be both social and educational. It is not either social or educational.”

• But the SC had said “The classes of citizens who are deplorably poor automatically become socially backward.” (slide 20 earlier)

And as far as educational backwardness is concerned, the State’s figures for higher education speak for themselves.

The faulting of the criteria : unable to say itself what the criteria ought to be, the court leaves it to the BCC. Then it proceeds to decide relevance, adequacy, etc., and ends up calling exercise

perverse, irrelevant, inadequate, illegal, religion-specific, baseless, etc.

• “evolving a proper criteria for determining which classes are socially backward, is obviously a very difficult task.”  “Indeed there is no such thing as a standard or model procedure / approach. It is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the Court has no say in the matter.”

• “The formal institutions designed by humankind are as viable as the maturity of its adherents. We need say no more.”

• Could this apply to the institution of the judiciary ?!

Can there be another definition ?

• 3.c : “Muslims” means any person professing the faith of Islam but does not include for the purpose of this Ordinance, persons belonging to Dudekula, Laddaf, Pinjari/Noorbash and Mehtar groups who are already included in the lists of Backward Classes in the State.

• Note that the SC had held Muslims can be considered after excluding those who have been already considered. Hence the exclusion. The Court finds fault with the definition. Let it define the expression : Can there be any other definition ?

• Instead of attempting a redefinition, however, the Court frames an issue thus : Whether in view of the definition of the expression “Muslims” (Section 2(c) of the Ordinance), the State legislative exercise qua the Ordinance is a fraud on the Constitution? Strong language ! And the answer it reaches : “Yes!”

I beg your pardon !!•  • Whether the failure of the Commission, to recognize the Muslim

collective in the State as a heterogeneous social class; the failure to exclude those insular classes of Muslims already recognized and established as Backward Classes while computing the population of the Muslims community; the failure to collect data on social, educational and economic aspects in relation to only the remnant population of the Muslim collective; the failure to formulate criteria of social backwardness, to identify the existence of any of further  classes/groups in the remnant Muslim population (in the context of insular classes of social  backwardness) and the failure to apply such relevant  evolved criteria to the appropriate data and to reach  rational conclusions, renders the exercise by the  Commission and its consequent conclusions and  recommendations irrational, perverse and invalid?; and (ii) Whether the provisions of the Ordinance based exclusively on an invalid and unsustainable report of the Commission, are invalid?

• How rational, valid and sustainable is the very framing of such a loaded question where the predisposition is so manifest ? Which judicial mind would frame an issue which establishes a priori what the judicial mind is to set out to determine ??

…what the SC said… and what our HC asks…

• For example it may take up the Muslim community (After excluding those sections, castes and groups, if any, who have already been considered) and find out whether it can be characterized as a backward class in the State or region, as the case maybe

• Whether the categorization of “Muslims” as Backward Classes is in substance and operation clearly and exclusively a religion specific Governmental reservations programme and the label of Backward Classes is only a camouflage to shield a clearly unconstitutional State action?

• Courts may disagree with actions, but can they refer to exercises which a higher Court deems proper as “religion specific” and “unconstitutional” ? What was the thought in the judicial mind ?

“Never in the history of our Republic has membership of a Backward Class been so enticing, so easy or so inviting” says our Court : anyone can convert to acquire backward

status !!

• Islam has no tradition, entrenched or in contemporary practice, prohibiting proselytization or conversion. Adventitious opportunities and advantages … inherent in a reservation programme, …, provide a powerful incentive to conversion … By the Ordinance, professing the faith of Islam better enables educational and public employment opportunities. Any person professing faith in Islam (according to the definition), is a Mulsim …is also a Backward Class…automatically … entitled to partake of the educational and public employment opportunities and benefits, in an entrenched and specially carved out quota of reservation …”. Any member indisputably belonging to a forward class amongst Hindus or belonging to any other race, caste, descent or religion would become backward by the mere expedient of “professing the faith of Islam”

• But the Court ignores its own quote : It is impermissible to acquire the status of a Backward Class either by marriage, conversion or adoption --- Valsamma Paul Vs. Cochin University AIR 1976 SC 1011

…and time marches on…

• 334. Reservation of seats and special representation to cease after [1][fifty 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 [2][fifty years] from the commencement of the Constitution:

• [1] Substituted by the Constitution (Sixty-second Amendment) Act, 1989, section 2, for “forty years” (w.e.f 25-1-1990).

• [2] Substituted by the Constitution (Sixty-second Amendment) Act, 1989, section 2, for “forty years” (w.e.f 25-1-1990).

…what the Court said…

• The Ordinance imposes illegitimate, discriminatory and grossly burdensome impact on citizens, on those belonging to the existing notified Backward Classes and on those who are not members of backward classes, as well. The inference is therefore compelling that the entirety of the State action manifested in the provisions of the Ordinance, is a crude camouflage to shield what is clearly a naked and exclusively religion based programme of reservation in educational institutions and public employment. The declaration of Muslims as backward classes … is only on the basis of religion and discriminates against and negatively impacts members belonging to other religious persuasions only on the basis of religion. It is a religion exclusive classification. The provisions of the Ordinance, thus clearly transgress the prohibitions implicit in Art.14 and explicit in Art.15 (1) and 16 (2).

Reservations… shall they continue… exclusively… for those… who are… not

Muslims… ??

• If there is a negative impact on others from reservation favouring Muslims, has there been none on Muslims over the last half century and more of reservations ?

• Are reservation for SCs/STs who cannot be other than Hindu religion-specific and unconstitutional ?

• Does a community which does not subscribe to abolished caste system thereby disentitle itself from affirmative action benefits ?

• Do the basic premises prevailing at the dawn of constitutional history hold valid now or do they require restatement in the context of present-day socio-political realities ?

• If Muslims could not in 1940 be thought of as backward, does the basis of that view still hold good to require retention of archaic definitions of terms and blind judicial minds to changing demographic truths and deprivation of real equality or a “level playing field” for Muslims ? Where does judicial activism stop ?

…reservation …backwardness …criteria

parliamentary history in construing statutes

• The school of thought that limited but open use should be made of parliamentary history in construing statutes is gaining ground. Courts, after enunciating the rule of exclusion of parliamentary history, have veered to the view that legislative history within circumspect limits may be consulted by Courts in resolving ambiguities. (AIR 1952 SC 366, AIR 1952 SC 369, AIR 1050 SC 27) 

• Courts are entitled to take into account such external or historical facts as may be necessary to understand the subject matter of the statute or to have regard to the surrounding circumstances which existed at the time of passing of the statute.

• (While this was stated for statutory interpretation, it would equally apply to constitutional interpretation)

U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd.AIR 1993 SC 1435 = (1993) 2 SCC 299

(2 MB) ~~ Kuldip Singh, J. B.P. Jeevan Reddy J.

• ... the obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. ....

• In the matter of administrative action, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have ‘a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred’. The court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the Administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court intervene. Doctrine of fairness, evolved in administrative law, is not supposed to convert the writ courts into appellate authorities over administrative authorities.

the constitution a living document, not a dead letter

• There is greater reason in giving to the language of a Constitution, a liberal construction so as to include within its ambit the future developments in various fields of human activity than in restricting the language to the state of things existing at the time of the passing of the Act. A Constitution, unlike other Acts, is intended to provide an enduring instrument to serve through a long lapse of ages without frequent revision.

• Several notions that have taken root have to be weeded out.• Several terms with archaic connotations have to be redefined.• Several basic premises have to be questioned.• Backwardness… is a misunderstood term : CAD reports show

minorities were specifically included in term.

… questions… feedback…

• Specific questions can be asked in brief

• Answers cannot be again responded to as time does not permit a debate on answers

• Questions must cease when time available expires