Op EdsOP. ED.

Introduction

If the local Government included in this category of reservations such a large number of seats, I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.

Dr B. R. Ambedkar in Constituent Assembly Debates on 30-11-1948 Part II.[1]

History is witness; making India independent was not a cakewalk. Our great leaders had left no stone unturned to unite the newly independent but fragmented India and shape it into an Akhand Bharat. The integration of States was made possible after pacifying every section of Indian population through deliberate talks, meetings, agreements, and policies. One such policy for socially and educationally backward sections was “reservation”. Back in 1948, when the reservation policy was proposed, it was welcomed with an overwhelming response, yet with an intention to initially limit its implementation to the period of 10 years which could be extended, only if necessary.

Since then, more than 75 years have passed, Indian politicians still seem to play the “reservation” card in pursuit of their political advantage, and Indians are still brawling for quotas in educational institutions and jobs. A little while ago, in January 2019, the present Government brought a new reservation policy granting 10% reservation of seats in government jobs and educational institutions for economically weaker section (EWS). The persons who will fall into the category of EWS are those who, are not covered under the scheme of reservation for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs).[2] This was facilitated by incorporating Articles 15(6) and 16(6) by the 103rd Constitutional Amendment Act on 14-1-2019.[3]

Since then, debates on EWS reservations have been the talk of the town. Numerous writ petitions were filed challenging the constitutional validity of the 103rd Constitutional Amendment in Supreme Court.[4] Though final decision on validity of EWS reservation and 103rd Constitutional Amendment is yet to be decided by the Supreme Court, the State and Union Governments are implementing EWS reservation scheme under the principle that there is always a presumption that the legislature understands and correctly appreciates the need of its own people and therefore, every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality.[5]

In July 2021, Central Government issued notifications regarding 27% reservations for OBCs and 10% quota for EWS in NEET All India Quota seats. These created furors among doctors which led them to protest and document multitudinous writ petitions in the Supreme Court. The Supreme Court heard all writ petitions under the case, Neil Aurelio Nunes v. Union of India.[6] Though the Supreme Court passed an interim order in this case allowing 27% reservation to OBC and 10% to EWS for the current academic cycle but the question is still unanswered — Is EWS reservation constitutionally valid?

To derive to the conclusion to this question, the Supreme Court sought clarifications from the Central Government by asking whether the Union Government endeavoured to take any exercise before deciding the criteria for the determination of the EWS category, whether or not EWS criteria is over-inclusive and arbitrary at the same time as it provides identical income cap both for the OBC and EWS categories, whether the regional income differences is considered before arriving at Rs 8 lakh income limit and many more related questions. This article endeavoured to analyse the answers to such micro questions in order to derive at solution to one mega question — Is EWS reservation constitutionally valid?

Definition of economic weaker section —A game changer

Definitions are of the utmost significance in legal thought, and that terms which cannot be defined should be dropped.[7] Central Government defines EWS[8] as –

“Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has gross annual income below Rs 8 lakh are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application. Also, persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:

  1. 5 acres of agricultural land and above;
  2. Residential flat of 1000 sq ft and above;

iii. Residential plot of 100 sq yd and above in notified municipalities;

  1. Residential plot of 200 sq yd and above in areas other than the notified municipalities.”

A bare reading of the definition seems to be clear, comprehensive and unambiguous, but subsequent paragraphs of this article show this definition grossly violates Articles 14[9], 15[10] and 16[11] of the Constitution.

An arbitrary definition

“It is an injustice to treat unequals as equals, just as it is an injustice to treat equals as unequals.”– Aristotle.

Reservation of OBC is based on rule of exclusion which excludes socially advanced sections of people from OBC category (creamy layer) from the purview of reservation. Criteria for determining creamy layer are given under Annexure II of Official Memorandum on Issue of Instructions on Reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes in services under the Government of India.[12] Out of 6 categories that have been set out for determining creamy layer among OBCs, one category is income/wealth test. Sons and daughters of persons having gross annual income of Rs 1 lakh or above for a period of three consecutive years would fall within the creamy layer and would not be entitled to get the benefit of reservation available to the Other Backward Classes.[13] The income slab for ascertaining the creamy layer sections was subsequently raised to Rs 2.5 lakhs, Rs 4.5 lakh, Rs 6 lakhs vide different notifications. The current income slab for creamy layer status has been raised to Rs 8 lakhs per annum.[14] Therefore, income/wealth test to determine rule of exclusion (creamy layer) and rule of inclusion (EWS) for the benefit of reservation is same.

By employing only income/wealth test to determine the category for EWS reservation, the Government has bypassed a catena of Supreme Court judgments[15], where the Court has held that neither income by itself nor caste by itself can be the sole criteria to determine social backwardness, and both income and caste together are relevant in determining the backwardness of citizens but, nevertheless, the Government has brought reservation solely based on economic factor. Not much scrutinising on the debate whether or not it is constitutionally valid to make economic factor sole criteria to determine EWS reservation; this paper will remain focus on analysing the “economic factor” already set by the Government to determine EWS reservation.

Before further examining the income/wealth test of EWS reservation through a hypothetical situation, it is pertinent to understand the meaning of “socially and educationally backward”. In Indra Sawhney v. Union of India[16] the following observation was penned down:

The expression “backward class of citizens” is neither defined nor explained in the Constitution…. However, the backward class or classes can certainly be identified with reference to caste along with other criteria nature of traditional occupation or trade, poverty, place of residence, lack of education and these factors are not exhaustive and in communities where caste is not recognised by the above recognised and accepted criteria except caste criterion…a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservations can be made in the favour of the caste.

Considering a hypothetical situation, where there are 2 families, one is General category (herein referred as Family A) and the other is OBC category family (herein referred as Family B).  Each has 4 members – father (businessman), mother (housewife), candidate, and a minor sibling. For many consecutive years, Family A’s annual income was Rs 8,50,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.) and pay tax accordingly, but due to temporary loss in business, their 2020-2021 annual income dropped to Rs 7,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.).Therefore, for the year 2020-2021, Family A falls under the definition of economic weaker section and the candidate can claim reservation under EWS category. On the other hand, Family B generally has annual income of Rs 6,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.) but due to unpredictable profit in business for 3 consecutive years the family income has raised to Rs 8,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.). This implies that now a candidate from Family B falls under creamy layer status and cannot claim reservation. This implies that backward class community who are socially and educationally deprived for years but only due to economic growth in 3 consecutive years they are not been given reservation benefit, but parallel to this, general category community who are neither socially nor educationally nor economically deprived but due to loss in business in a single year will make them eligible for reservation.

The Central Government tries to explain the differences between Rs 8 lakhs income test of EWS criteria and creamy layer criteria on the basis of definition of “family”, constituents of “annual income” and considering 3 consecutive years in OBC and prior year annual income in EWS. But from this hypothetical situation it can be concluded that despite the differences between the two Rs 8 lakh income slabs, the Government are treating unequal equally and therefore violate Article 14 of the Constitution.

Even though Central Government accepts the proposal to increase the income limit of Rs 8 lakhs to 12 lakhs for determining the creamy layer among OBCs17, the over-inclusive nature of Rs 8 lakh income slabs for determining EWS category will still make it a problematic policy to implement.

An over-conclusive definition

In India, the income tax structure is designed in such a way that up to Rs 2,50,000 annual income, no tax rate is levied. Above Rs 2,50,000, different tax rate is imposed according to different income slab. It is pertinent to note that neither in existing tax regime nor in new tax regime, Rs 8,00,000 is made upper limit or lower limit of any income tax slab. The present government reports that for Financial Year 2018-2019 till February 2020, only 1% of the Indian population pays income tax. Meaning thereby, out of 138 crore populations, only 5.78 crore individuals are taxpayers and out of these total taxpayers, only 1.46 crores individual filed income tax returns above Rs 5 lakhs income tax slab.18It would be wrong to argue that due to tax evading practices in India there are so few taxpayers. As per the data released by the Government, 75% Indians have annual income less than Rs 5lakhs and 17% Indians have income between Rs 5 lakhs to 10 lakhs.19 According to the Government’s Economic Survey 2020-2021, per capita income of India in 2020-21 is Rs 1,26,96820, which means the average Indian earns Rs 1.3 lakhs (approx.) in a year. These statistical data implies that the bulk of population will be eligible for EWS reservations within Rs 8 lakhs income bracket, making it an unreasonable and irrational threshold.

Inequality among Indian States

In a country like India, where inter-State disparity and regional income inequality prevails across the Indian States21, Government has imposed Rs 8 lakh income cap as a uniform income-based threshold which is uniformly adopted across the country. As per  RBI Handbook of Statistics on Indian States, per capita net State domestic product for the year 2020-2021 is highest in Goa (Rs 4,72,216) followed by Sikkim (Rs 4,24,454) and Delhi (Rs 3,54,004) and lowest in Bihar (Rs 46,292), Uttar Pradesh (Rs 65,431) and Jharkhand (Rs 75,587).22 This implies that State economic production value attributed to per person of Goa, Sikkim and Delhi is much higher than that to per person of Bihar, Uttar Pradesh and Jharkhand. Under this background, it can be concluded that majority population from Bihar, Uttar Pradesh, Jharkhand and other low per capita (NSDP) States will fall under 10% EWS reservation. Therefore, Rs 8 lakhs income criterion is over-inclusive.

On the substratum of the above discussion, it can be very well stated that the scheme of EWS reservation suffers from the vice of non-application of mind by the authority concerned, as the Union Government had “mechanically” adopted Rs 8lakhs cut-off without endeavouring to undertake any appropriate exercise before determining the criteria for EWS reservation. This act of arbitrariness by the Government manifests flagrant violation of the constitutional mandate of Article 14.

Is even10% valid

The Report of the National Backward Classes Commission states forward Hindu caste and communities (which includes Brahmins, Bhumihars, Rajputs, Marathas, Jats, Vaishyas-Bania, Kayasthas and other forward Hindu castes) constitute 17.58% of the population.23 In addition to these 17.58%, Buddhist (0.67%) and Jains (0.47%) are also not covered under any scheme of reservations. This data has been recently used by  the Supreme Court in deciding the civil appellate/original jurisdiction case Jaishri Laxmanrao Patil v. Chief Minister (also called Maratha Reservation case).24 Based on the calculation of above data, it can be estimated that the total population outside the purview of reservation benefit in India is not more than 20%. For 20% socially and educationally forward population, the Government has reserved 10% seats in government jobs and education institutions with over-inclusive income brackets.

Though 50% has been set as the maximum limit for caste-based reservation, but this ceiling can be crossed in extraordinary circumstances.25Unfortunately, the Government is treating the underline situation as extraordinary in order to validate the breaching of 50% reservation ceiling while implementing 10% EWS reservation. Before delving into the discussion of whether the present matter falls within the ambit of an extraordinary situation, it is necessary to understand what comes under an extraordinary situation. Indra Sawhney case26 has given illustration regarding certain extraordinary situation in para 810 of the said judgment:

  1. … It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

The Supreme Court in para 475 of Maratha Reservation case27agreed that the expression in far-flung and remote areas” incorporates geographical test and “the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them” incorporates social test. In the same paragraph of the abovementioned case, the Supreme Court held that:

475 … one of the social conditions in para 810 (of Indra Sawhney case28) is that (not) being within the mainstream of national life, the case of Maratha does not satisfy the extraordinary situations as indicated in para 810 of Indra Sawhney29, as the Marathas are in the mainstream of the national life….30

The above discussion makes it clear that due to over-inclusive nature of EWS definition, people from mainstream of national life are also covered for the benefit of reservation and therefore, the present case does not quench the extraordinary situations as specified in Indra Sawhney judgment31. Overstepping the 50% reservation maximum cap without there being any instance of extraordinary circumstances clearly flouts Articles 14 and 16 of the Constitution, which makes the enactment ultra vires.32

Under this background, it would not be wrong to conclude that the EWS reservation scheme criteria have been implemented without taking due consideration of gross domestic product (GDP)/per capita income, inter-State economical differences, rural urban purchasing power and other various data. This is a blatant manifestation of political moves in the guise of policy implementation with a lack of up-to-date and quantifiable data. In the line of a series of recent judgments, the Supreme Court and High Courts33 have called attention to the significance of quantifiable data as a mandatory prerequisite for the reservation scheme in education and employment. In Jaishri Laxmanrao Patil v. Chief Minister34, the Supreme Court reiterated the observation held in M. Nagaraj v. Union of India35 that if they are making provisions related to reservations, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation. The Supreme Court in Maratha Reservation case36 has struck down the reservation policy for Maratha as the Government could not back up the reservation policy with appropriate, adequate and quantifiable data. Same might be the fate of EWS Reservation policy, if the authority concerned could not come up with the necessary modification in tuned with appropriate and quantifiable data.

Conclusion

In India, the “reservation” is getting deceptively complex with each passing day. Judiciary with its legal power consistently engrossed in simplifying the puzzle posed by the regular conflicting interest between the Indian politicians, who once in 5 years deliberate on “reservation” as their election manifesto to secure their vote bank and the stakeholders, who for the entire 5 years agitate either “for” reservation or “against” reservations. The present Government by bringing EWS reservation has though chosen bold path but with wobble steps which, if get implemented will result in more harm than good. Considering the present scenario, the Supreme Court can lead the case to three different possible situations: first, upheld the 103rd Constitutional Amendment Act, 2019; second, partially upheld by recommending certain modification in income bracket and quantum of seats reserved; and third, quash the 103rd Constitutional Amendment Act, 2019 on basis of sole economic criterion and exceeding 50% reservation cap. Whether the Supreme Court ends the controversy with these expected outcomes or adopts a different strategy to decide the case is yet to be seen.


*5th year student, B.A-LL.B, National University of Study and Research in Law, Ranchi. Author can be reached at subhashni.kumari@nusrlranchi.ac.in.

[1]Constituent Assembly Debates, Vol. 7, 30-11-1948 speech by Dr B.R. Ambedkar, p. 702.

[2]Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Official Memorandum No.36039/1/2019-Estt (Res) (notified on 31-1-2019).

[3]Constitution (103rd Amendment) Act, 2019, Arts. 15(6) and 16(6).

[4] Janhit Abhiyan v. Union of India, 2020 SCC OnLine SC 624.

[5]State of Bombay v. F.N. Balsara, AIR 1951 SC 318.

[6] 2022 SCC OnLine SC 75.

[7] Huntington Cairns, A Note on Legal Definitions, 36 Columbia Law Review 1099, 1099 (1936),

<https://www.jstor.org/stable/1117047>.

[8]Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Official Memorandum No.36039/1/2019-Estt (Res) (notified on 31-1-2019).

[9]Constitution of India, Art. 14.

[10]Constitution of India, Art. 15.

[11]Constitution of India, Art. 16.

[12] Government of India Ministry of Personnel, Public GrievancesandPensions Department of Personnel & Training Official Memorandum No.36011/6/2010-Estt.(Res), (Notified on 25-6-2010),

<https://documents.doptcirculars.nic.in/D2/D02adm/36011_6_2010-Estt.(Res).pdf>.

[13] Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel &Training Office Memorandum No. 36012/22/93-Estt. (SCT) (Notified on 8-9-1993).

[14] Government of India Ministry of Personnel, Public Grievances and Pensions, Department of Personnel &Training Office Memorandum No. 36033/1/2013-Estt. (Res.) (Notified on13-9-2017).

[15]Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420; K.S Jayasree v. State of Kerela, (1976) 3 SCC 730.

[16]1992 Supp (3) SCC 217, para 243.

17Rahul Srivastava, Centre Considering Proposal to Revise Income Criteria for Determining Creamy Layer among OBCs,India Today (3-2-2021), <https://www.indiatoday.in/india/story/centre-considering-proposal-to-revise-income-criteria-for-determining-creamy-layer-among-obcs-1765327-2021-02-03>.

18Only 1% Indians Pay Income Tax, Government Tells Lok Sabha, Business Today, <https://www.businesstoday.in/latest/economy-politics/story/only-1-percent-indians-file-income-tax-govt-tells-lok-sabha-273519-2020-09-21> (last visited on 8-1-2022).

19Only 1% of Taxpayers Earn over Rs 50 Lakhs: Government Data, Times of India, <https://timesofindia.indiatimes.com/business/india-business/people-earning-less-than-2-5-lakh-constitute-57-of-taxpayers-govt-data/articleshow/77519141.cms> (last visited on 10-1-2022).

20Statistical Appendix: Economic Survey 2020-21, <https://www.indiabudget.gov.in/economicsurvey/doc/Statistical-Appendix-in-English.pdf> (last visited on19-1-2022).

21Government of India, Ministry of Finance Department of Economic Affairs Economic Division, Economic Survey 2020-21, Vol. 1, Ch. 4, Inequality and Growth: Conflict or Convergence, 121-149,

<https://www.indiabudget.gov.in/economicsurvey/doc/echapter>.

22RBI Handbook of Statistics on Indian States Report, <https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/16T_241121E38C1EC7A0CE444BB1D875B6CBAC913B.PDF > (last visited 8-1-2022).

23Government of India : Report of the Backward Classes Commission (Mandal Commission Report), Part 1, Vol. I, p. 56.

24(2021) 8 SCC 1.

25Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

261992 Supp (3) SCC 217, 735.

27JaishriLaxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 247.

281992 Supp (3) SCC 217.

291992 Supp (3) SCC 217.

30Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 247, para 475.

311992 Supp (3) SCC 217.

32Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 254, para 493.

33V.V.Saminathan v. Govt. of T.N., 2021 SCC OnLine Mad 5646.

34(2021) 8 SCC 1, 245, para 466.

35(2006) 8 SCC 212.

36Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and AS Bopanna, JJ has upheld the constitutionality of the Scheme formulated by the State of Tamil Nadu granting loan waiver to small and marginal farmers as these farmers suffer a greater degree of harm because of their limited capacity and aid.

Factual Background

A Government Scheme which granted loan waiver to small and marginal farmers was under challenge before the Court for being discriminatory against other farmers. The Madras High Court held the grant of loan waivers only to small and marginal farmers to be arbitrary and directed the appellant to grant the same benefit to all farmers irrespective of the extent of landholding. The High Court in the impugned judgment has observed that the scheme is both under-inclusive and over-inclusive since the total extent of land held by a person is calculated based on the information in the landholding register which permits discrepancies. It also held the scheme to be under-inclusive for not extending the benefit to ‘other farmers’ or the ‘large farmers’.

Reasons for the formulation of this scheme

(i) The small and marginal farmers have faced greater harm due to the erratic climate conditions in view of the limited technology and capital that they possess; and

(ii) The state seeks to provide maximum benefits with the minimum fund.

State’s submissions

  • by waiving Rs. 5780 Crore worth of crop loans, the number of small and marginal farmers who would be benefitted would be 16,94,145. On the other hand, waiving the crop loan of Rs 1980 Crore that the other farmers held would only benefit 3,01,926 of them. Hence, providing the benefit of the scheme only to marginal and small farmers leads to maximum utility for minimum investment.
  • classification was required since the small and marginal farmers suffer a greater degree of harm because of their limited capacity and aid. It is judicially recognized that the legislature is free to recognize degrees of harm and may confine its restrictions or benefits to those cases where the need is the clearest
  • the consumption expenditure of marginal and small farmers exceeds their estimated income by a substantial margin, and the deficits are covered by borrowings. The fact that 16,94,145 small and marginal farmers have availed of agricultural loans as compared to 3,01,926 farmers belonging to the ‘other category’ testifies that the small and marginal farmers have a significant capital deficit when compared to the rest of the farmers. A huge capital deficit, combined with a reduction in the agricultural income due to water scarcity and crop inundation due to floods has led to financial distress. Small and marginal farmers are resource deficient; they do not have borewells to overcome the drought. These farmers are usually dependent on large farms to access land, water, inputs, credit, technology, and markets. It was found that almost 40% of the irrigated land of large farmers was from canals, while less than 25% of the land of small and marginal farmers was irrigated by canals or borewells and they often resort to renting water from larger landholdings.
  • the percentage distribution of the indebted agricultural households depicts that 27% of the households that hold between 0.01- .040 hectares of land; 34% of those who hold between 0.40-1 hectares and 20% of those who hold between 1-2 acres, are indebted. On the other hand, only 4.5% of those who hold 4-10 hectares and 0.6% of those who hold 10 plus hectares are indebted.

Analysis

Introduction of Scheme in pursuance of electoral promise – Effect

The High Court had taken the view that because the scheme was in pursuance of an electoral promise, it is constitutionally suspect. This view was made on an assumption that no study must have been conducted before the electoral promise was made.

The Supreme Court, however, noticed that it is settled law that a scheme cannot be held to be constitutionally suspect merely because it was based on an electoral promise. A scheme can be held suspect only within the contours of the Constitution, irrespective of the intent with which the scheme was introduced.

Why is the application of the impugned scheme to only the small and the marginal farmers justified?

The Court noticed that the purpose of providing a waiver of agricultural loans for farmers is to uplift the distressed farmers, who have been facing the brunt of the erratic weather conditions, low produce, and fall in the prices because of the market conditions. The objective of promoting the welfare of the farmers as a class to secure economic and social justice is well recognized by Article 38.

The percentage distribution of the indebted agricultural households also depicts the poverty that envelops the class of small and marginal farmers.

Hence, the scheme propounded by the State of Tamil Nadu passed muster against the constitutional challenge for the following reasons:

  • A climate crisis such as drought and flood causes large scale damages to small holdings as compared to the large holdings due to the absence of capital and technology; and
  • The small and marginal farmers belong to the economically weaker section of society. Therefore, the loan waiver scheme in effect targets the economically weaker section of the rural population. The scheme is introduced with an endeavor to bring substantive equality in society by using affirmative action to uplift the socially and economically weaker sections. Due to the distinct degree of harm suffered by the small and marginal farmers as compared to other farmers, it is justifiable that the benefit of the scheme is only provided to a specified class as small and marginal farmers constitute a class in themselves. Therefore, the Percentage Distribution of Indebted Agricultural Households < 0.01 0.40 – 1.00 1.01 – 2.00 2.01 – 4.00 4.01 – 10.00 10.00 + classification based on the extent of landholding is not arbitrary since owing to the inherent disadvantaged status of the small and marginal farmers, the impact of climate change or other external forces is unequal.

[State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association, 2021 SCC OnLine SC 1114, decided on 23.11.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J. while addressing the contempt petition, expressed that,

Merely because the immediate lis pertains to the contempt jurisdiction would not imply that this court sheds its plenary authority under Article 226 of the Constitution while considering the manner of implementation of the said order. 

Rather than the caste system being wiped away, the present trend seems to perpetuate it by endlessly extending a measure that was to remain only for a short duration to cover the infancy and, possibly, the adolescence of Republic. Though the life of a nation state may not be relatable to the human process of aging, but at over-70, it ought, probably, to be more mature.

Factual Background

Petitioner is stated to be a political party, one which has returned to power in this State following the Assembly elections conducted a few months back. Most major political parties in the State had filed the other petition that came to be decided the Order dated 27-07-2020 (“the said order”).

Petitions that were decided by the said order sought implementation of reservation for Other Backward Classes (OBC) in the All India Quota (AIQ) of the seats surrendered by the State for admission to the under-graduate, post-graduate and diploma medical and dental courses in the State. Reservation implementation was sought from 2020-21.

Request for interim relief, was rejected with the observation that this court was justified in holding that since the selection process for the relevant academic year had commenced, the same could not be disturbed. However, the appeals remain pending and, in such sense, the order of this Court of July 27, 2020, has not attained finality, though there is no impediment to it being implemented in academic year 2021-22.

Analysis, Law and Decision

While addressing the matter, Court observed that,

If a pool of seats is available to candidates from all over the country, irrespective of an individual’s place of residence, the State-wise reservation, which is based on demography of the State, cannot hold good for the entire country as the mix of socially backward classes would differ from region to region even within a State.

Court added that, Ordinarily, reservations pertaining to admission to educational institutions and appointments to government service are provided by statutory enactments or rules under a particular statute.

Difficulty, in the present case, arises in the fact that the present contempt petition arises out of an order which has been carried to the Supreme Court by way of an appeal and an interim order in the appeal observed as to the import of the order dated July 27, 2020

To elaborate more, the Bench added that the matter is of some importance as the careers of not only the prospective all-India candidates in the medical entrance seats surrendered by the State in the AIQ would be affected by the present order, it may also have an all-India impact, subject to what may ultimately be decided by the Supreme Court.

Coming to the question, whether the said order of this Court has been complied with?

Bench noted that:

to the extent that a committee was constituted and the committee made its recommendations, the order has been complied with. However, the order may not have contemplated that neither recommendation of the committee would be accepted and a third alternative would be imposed by the Union, though the order required consultation between several stakeholders to arrive at an informed decision. Equally, the first option indicated by the committee was no option at all, as it was absurd to suggest that the State reservation rules would apply to AIQ seats for admission to the under-graduate, post- graduate and diploma medical and dental courses in the State since that would, ipso facto, take the seats away from the AIQ pool back to the State as only backward classes as notified by the State in its official gazette would be entitled to the reservation and not candidates not resident in the State.

Adding to the above, Court expressed that, it is true that the petition before this Court is one for the perceived breach of a previous order of this court, but if the present petition were to be ineffectively disposed of that would result in another petition, multiplicity of proceedings and the issue being left unresolved.

It may be in the public interest, at times, for courts to be decisive, without being rash, of course.

At least there is a safety net even if this court goes wrong for the matter to be decided at the highest stage; but a decision is called for in the matter in the larger public interest.

Analyzing further, the Bench stated that the AIQ scheme had been introduced for entrance to under-graduate and post-graduate degrees and diploma courses in government-run or aided medical and dental colleges across the country pursuant to orders of the Supreme Court.

To the extent that 27 per cent of the seats available for admission in Central educational institutions is reserved for OBC candidates, other than the creamy layer, and such figure having been arrived at upon empirical studies being conducted, the provision for 27 per cent reservation for OBC candidates, in addition to the approved reservation for scheduled caste and scheduled tribe candidates as indicated in the notification of July 29, 2021, may be permissible, subject to the formal approval of the Supreme Court being obtained in such regard.

Another significant point expressed by the Court was that, if the AIQ seats are thrown open to candidates across the country, there cannot be reservation to one extent in one State and reservation to another extent in another State.

Conclusion 

  1. Since the committee required to be constituted by the order dated July 27, 2020, was constituted and such committee gave its opinion and the Union, or its appropriate agencies, have acted on the basis thereof – albeit not exactly in terms of the recommendations – no case of wilful or deliberate violation of the said order can be said to have been made out.
  2. The notification of July 29, 2021, issued by the Union as a consequence of the order dated July 27, 2020, appears to be in order insofar as it provides for reservation for scheduled castes, scheduled tribes and OBC categories. The horizontal reservation provided in such notification for persons with disabilities also appears to be in accordance with law.
  3. The additional reservation provided for economically weaker sections in the notification of July 29, 2021, cannot be permitted, except with the approval of the Supreme Court in such regard.

In view of the above, contempt petition was dropped.

“…entire concept of reservation that appears to have been addressed by the Constituent Assembly while framing the Constitution may have been turned on its head by repeated amendments and the veritable reinvigoration of the caste system – and even extending it to denominations where it does not exist – instead of empowering citizens so that merit may ultimately decide matters as to admission, appointment and promotion.”

 [Dravida Munnetra Kazhagam v. Rajesh Bhushan, 2021 SCC OnLine Mad 4851, decided on 25-08-2021]


 Advocates before the Court:

For the Petitioner: Mr. P. Wilson, Senior Advocate for M/s. P. Wilson Associates

For the Respondents: Mr. K.M. Nataraj

Additional Solicitor-General of India assisted by Mr. V. Chandrasekaran

Senior Panel Counsel for respondents 1, 2, 4 and 8

: Mr. P. Muthukumar Counsel for the State for respondents 6 and 9

: Ms. Shubharanjini Ananth Standing Counsel  for 3rd respondent

: Service awaited for respondents 5 and 7

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sanjay Yadav and Rajendra Kumar Srivastava, JJ., dismissed a writ petition which was raised alleging disproportionate distribution of increased Post Graduate Medical seats in Clinical and Non-Clinical subjects. The Petitioner sought to strike down complete process of admission in Post Graduate Medical seats through NEET-PG 2020 and that the respondents be restrained from allotting the seats to EWS quota candidates by reducing the seats of unreserved category students.

It was contended that vide said communication dated 17-01-2019, Chief Secretaries of all State Governments/Union Territories were requested to give effect to the provisions of 103rd Amendment of the Constitution for all higher educational institutions funded/aided, directly or indirectly, by the State Government in such manner that the provision for reservation for EWS would become operational from academic year 2019-20. It was urged that in the State of Madhya Pradesh, 187 seats have been increased under Section 10A of the Indian Medical Council Act, 1956 for EWS category which was disputed by the Deputy Advocate General and it was urged that as per MCI’s letter dated 20-02-2020, 87 seats were needed to be increased for implementation of 10% EWS quota and not 187, as contended. Be that as it may, there is no cogent material on record to establish that the seats under 10% EWS quota for academic session 2020-21 were increased by 187. Therefore, the contention to said effect made on behalf of the petitioner is discarded.

Dwelling on the contention regarding actual distribution of Post Graduate medical seats in various streams, it was urged on behalf of the respondents/State that they include Post Graduate medical seats for PWD candidates which are 22 displayed on MP Online Portal and DME website; therefore, it is contended that there are 420 Post Graduate medical seats and not 398, as depicted by the petitioner. Respondents have further justified allocation of 14, 16 and 7 seats in General Medicine, General Surgery and Ophthalmology respectively for UR category which, it was urged, amounted to 40% of the seats reserved for the said category.

The Court discussed in detail the 103rd amendment of the of the Constitution of India and concluded that Amendment enables the State to make provision for not more than 10% reservation to economically weaker sections who are not covered under the existing scheme of reservation for the Scheduled Castes, Scheduled Tribes and Socially & Educationally Backward Classes, to receive the benefits of reservation on a preferential basis, meaning thereby that a class to be determined as EWS out of General Category are to be provided 10% reservation. In other words, with 50% reservation already in existence in favour of ST/SC/OBC, out of remaining 50%, 10% reservation is carved out for EWS, which leaves the unreserved category with 40% reservation.

The Court after carefully studying the distribution of seats as submitted by the respondents came to a conclusion that though total number of seats have been increased from 155 of the year 2019 to 160 of the year 2020 but, the respondents/State, without proper application of mind, has reduced the clinical seats for general category as compared to the previous year. The Court finally found that the contention that the reservation exceeds 50% was belied.

The Court dismissed the petition finding that there was no substance in the challenge.[Kanishk Bhandari v. State of M.P., Writ Petition No. 7831 of 2020, decided on 14-07-2020]


Suchita Shukla, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: In an interesting case Sanjay Kumar Dwivedi, J., had held that the 10% reservation to Economically Weaker Sections cannot be applied retrospectively.

The petitioners had preferred this writ petition for quashing the Advertisement No.05/2019, so far as it relate to the appointments to be made on the post of Assistant Engineer (Civil) to the extent of retrospective applicability of 10% reservation for Economically Weaker Section (EWS) reservation. The prayer was also made for quashing of the decision to conduct single selection process on the vacancies of the year 2013 and 2015 respectively.

Background

The facts of the case were that the Road Construction Department vacancies for the post of Assistant Engineer (Civil) were published in the year 2013 wherein petitioners had applied to participate in the selection process for their direct recruitment. The number of unreserved posts advertised was 105 vacancies. There was no EWS reservation of 10% quota applicable at that point of time. Later on, by another Advertisement No. 06 of 2015, the department earmarked vacancies to be filled up for the post of Assistant Engineer (Civil) in the year 2015. The petitioners eligible on all counts, applied to participate in the selection process for their direct recruitment. The number of unreserved posts advertised was 93 vacancies again; there was no EWS reservation of 10% quota applicable at that point of time. However, no selection test was conducted pursuant to above two advertisements.

The grievance of the petitioners was that the respondent-department further published Advertisement No.05 of 2019 to make appointment on the post of Assistant Engineer (Civil). The earlier advertisements had been superseded by the current advertisement, which contains merged vacancies of advertisements of 2013 and 2015 and also current vacancies of 2019. Due to merger of vacancies, the seats which were available in the year 2013 and 2015, had been brought under the cover of current advertisement of the year 2019, wherein 10% reservation for EWS had been made applicable retrospectively for all the earlier vacancies. Aggrieved with the merger part of the earlier advertisements, the petitioners had filed the instant petition.

Grievance of the Petitioners

The counsel for the petitioners, Mr. Saurabh Shekhar submitted that the petitioners were not EWS candidates, and therefore, the applicability of reservation quota would adversely affect their right on earlier vacancies, on which the provisions of EWS could not be made applicable retrospectively. It was further submitted that 52 seats had been earmarked for EWS candidates separately, but these seats had been carved out from the unreserved quota, as the reservation point had been increased by 10%, thereby, enhancing the upper limit of reservation 60%, but that had to be done on post facto vacancies. Therefore, the counsel contended that the petitioners would suffer as the vacancies in unreserved quota had been reduced by applicability of EWS in the vacancies of earlier selection process.

Whether EWS reservation can be given effect retrospectively or not?

Reliance was placed by the Court on M. R. Balaji v. The State of Mysore, AIR 1963 SC 649, wherein the Constitution Bench of the Supreme Court had rejected the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. It had also been observed that a provision under Article 15(4) being a special provision must be within reasonable limits. Again, in Indra Sawhney v. Union of India, reported in 1992 Supp (3) SCC 217, the Constitution Bench of the Supreme Court had approved the view taken in the case of M. R. Balaji by providing proposition that the extent of reservation shall not exceed to 50% of the appointment of post except in certain extraordinary situation taking together with reservation in favour of Scheduled Caste and Scheduled Tribe category candidates.

Admittedly, 103rd Amendment Act, 2019 which introduced the reservation for EWS was made effective w.e.f. 14-01-2019. The Government of Jharkhand by way of resolution dated 15-02-2019 had also adopted the said amendment. In view of Clause 11 of that resolution, it was clear that the reservation would be effective w.e.f. 15-01-2019 in subsequent advertisement. Thus, that reservation could not be allowed to be made effective with retrospective effect, which was against the mandate of the Constitution which is the fountain of all the Statutes. The Bench clarified,

“At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India. The merger of earlier advertisements, which has been made effective retrospectively, is against the constitutional scheme.”

Hence, reservation for EWS which had been made effective in the garb of resolution dated 15-02-2019, along with the vacancy of the year 2013 and 2015 could not be allowed. The Bench stated,

“The respondent-State has already come out with advertisement of the year 2013 and 2015 respectively, which was cancelled subsequently. This appointment was required to be completed adhering to the extent of reservation up to 50%. Thus, the said vacancies are required to be filled up in terms of Rule of that time.”

In view of the above, the impugned Advertisement No. 05 of 2019 was set aside and the Court declared that retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India. Consequently, the State Government was directed to modify the impugned Advertisement to the extent that 10% quota for EWS should not be made effective retrospectively for the vacancy of the year 2013 and 2015. Similarly, ongoing appointment process were declared contrary to the constitutional mandate and hence, held to be illegal.

Accordingly, the State was directed to advertise those posts separately within eight weeks and modify the impugned advertisement of 2019 in light of 103rd Amendment of Constitution.[Ranjeet Kumar Sah v. State of Jharkhand, 2021 SCC OnLine Jhar 78, decided on 21-01-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioners: Mr. Saurabh Shekhar, Advocate

For the Respondent-State: Mr. Rajiv Ranjan, Advocate General, Mr. Mohan Kumar Dubey, A.C. to A.G.

For the Respondent-JPSC: Mr. Sanjay Piprawall, Advocate

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., directed that the petitioner, belonging to the Maratha caste, be considered for providing the benefit of EWS quota albeit a rider.

In the instant petition, the petitioners stated that they belong to the ‘Maratha Caste’ and have applied from E.W.S Category in the central format.

The same is categorized as S.E.B.C. Because of the G.R. dated 28-07-2020, a person from the reserved category cannot apply from E.W.S. Supreme Court had stayed the reservation of S.E.B.C

Further, the petitioners state that they will give an undertaking that they would not claim the benefit of reservation for educational purpose at any point in time.

Decision

Bench held that respondents may not deny the EWS Certificate to the petitioners only on the count of them belonging to the Maratha caste hence shall consider them on the production of the EWS Certificates required as per the rules from EWS Category.

Adding to the above, Court also stated that the petitioners shall not be entitled to any benefit of reservation for educational purposes once having been admitted from EWS Category.

Petitioners will have to prove before the Tahsildar that they belong to the economically weaker section then only would be entitled to EWS certificate.

Court expressed that:

If the petitioners are issued with the EWS certificates in the State format and undertaking is filed by the petitioners that during the entire educational career, they would not claim benefit of any reservation, either vertical or horizontal except EWS category, then the petitioners be considered for admission from EWS category.

[Vaishnavi Maroti Wadje v. State of Maharashtra, 2020 SCC OnLine Bom 4350, decided on 18-12-2020]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while addressing the present petition issued directions with regard to the counselling process at the time of admission into Medical Postgraduate.

Petitioner a qualified doctor filed the present petition praying to preserve his admission at the Maulana Azad Medical college for MD (Pathology).

Petitioner belongs to the Economically Weaker Section and holds an EWS certificate from the State of Kerala. Petitioner had appeared for NEET Examination on 5-01-2020.

After the results, as a procedural step, the petitioner had to register himself for counselling for various quotas wherein he applied for the All India Quota, Central Inst. Quota and the Delhi University Quota.

Petitioner had obtained a seat for MD (Pathology) in MAMC and after the process for admission was completed in the evening he was informed by the college staff that he had been wrongfully allotted a seat under the Delhi University Quota and thus his admission could not be confirmed.

He did not get any clarity from the authorities on the said decision and hence filed the present petition.

Decision and Analysis

Delhi University Quota

Bench on perusal of the averments and facts of the present matter observed that there was no doubt about the fact that the petitioner ought to have been conscious of the fact that he would not have been eligible under the Delhi University Quota.

Prior to the registration for counseling, the eligibility criteria for each of the institutional quotas are already set.

Court observed that in order to avail of a PG seat in Delhi University Quota, the candidate must have passed his/her final MBBS from Delhi University.

Petitioner is clearly not qualified from the Delhi University Quotaand he was at best entitled to a seat in the All India Quota or in the State Quota for Kerala depending upon his rank.

Hence in view of the above-stated position, Court opines that the petitioner does not satisfy the eligibility for being considered in DU Quota and therefore the relief sought is not tenable.

Further, the Court added that the said confusion could have been avoided if there were proper checks at different levels of counselling.

The Court while being empathetic with the position in which the Petitioner currently finds himself, however, cannot direct confirmation of his admission in MAMC under the Delhi University Quota.

Bench directed the State of Kerala to allot any unfilled seat to the petitioner in a post-graduate medical course to enable him to take admission on or before 31-08-2020.

To avoid situations as arose in the present case, the Court passed the following directions:

  • At the time of registration for counselling there shall be a specific field in which candidates would be required to fill up with details of the college and the University from where they have completed their M.B.B.S. course.
  • Upon the said field being incorporated, the system should be designed in such a manner that only those quotas for which the candidates are eligible would be made available to the candidates.
  • After registration, prior to the allotment of seats, the data submitted by candidates shall be cross-verified with the data available with MCC so that wrong allotment is not made.

In view of the above, the present petition was disposed of. [Dr Machat Balakrishnan Menon v. Medical Council of India, 2020 SCC OnLine Del 1086, decided on 25-08-2020]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J., while dismissing the present petition held that,

Legislature has before it a full panoply of legislative powers and as an incident of those powers, the express constitutional authority to disapprove an ordinance. If an ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature incorporating its provisions.

Petitioners counsel submitted that notification inviting application by Public Service Commission respondent 1 was published on 27-11-2019 pursuant to official communication of 23-11-2019.

It has been submitted that the above-said notification did not carve out any space for the Economically Weaker Section (EWS) which was brought about by the Constitution (One Hundred and Third Amendment) Act, 2019.

Governor of Chhattisgarh had promulgated the Ordinance of 2019 as the State Legislature was not in session.

Legislative Assembly of the State was held on 2nd and 3rd October, 2019, but no legislative business was laid held. For the legislative business, the Assembly started on 25-11-2019 till 02-12-2019 and therefore the ordinance which was promulgated on 04-09-2019 would hold the field.

If the State took the decision to conduct an examination prior to publication of the notification, it would amount to playing fraud with the Constitution. He also referred to the case Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, and submitted that laying of an Ordinance before the legislature is mandatory.

State Counsel submitted that the Ordinance by the Governor was on 04-09-2019 and re-assmbly took place on 02-10-2019, therefore by virtue of Article 213 (2), six weeks expired on 13-11-2019 and the Ordinance ceased to operate. Subsequently, even if re-assembly of State Legislature started on 25-11-2019 till 02-12-2019 even after expiry of six weeks therefrom ordinance was not laid in the House, therefore, mandamus to this effect cannot be issued the Court.

Analysis

“Article 174 shows that the Governor has power to call for the sessions of the State Legislature and the time limit gap of 6 months is provided. Article 213 further gives power to the Governor to promulgate the Ordinance during the recess of Legislature.”

Since Article 213(2) mandates that the ordinance will expire from six weeks of the date of reassembly of the legislature, the ordinance having not been laid before the legislative assembly, within six weeks it would expire on 13-11-2019. Consequently, the said Article shows that after 13-11-2019, the ordinance ceased to function in operation.

Thus, keeping in view the facts and circumstances of the case and on perusal of the above-stated analysis, it is apparent that, if the State has not placed ordinance for EWS in the Legislative Assembly, the Court cannot issue a writ to promulgate the ordinance by way of mandamus on the principles of separation of powers.

Court also clarified that the reliance place on Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 does not endorse the view that if the ordinance is not placed within the time prescribed under Article 213(2), the Court will assume such power of effective review or reconsideration.

Laying of an Ordinance before the State Legislature sub-serves the purpose of Legislative control over the ordinance-making power.

Therefore, Court cannot issue a writ of mandamus to Legislature as it would amount to encroaching the turf of the State Legislature. [Irfan Qureashi v. Chhattisgarh State Public Sevice Commission, 2020 SCC OnLine Chh 7, decided on 07-02-2020]

Op EdsOP. ED.

Let’s have a look at the Most-Viewed Blog Posts of the SCC Online Blog in the Year 2019:

“Over the years there have been many important changes in the way cheques are issued/bounced/dealt with. Commercial globalisation has resulted in giving a big boost to our country. With the rapid increase in commerce and trade, use of cheque also increased and so did the cheque bouncing disputes.[1] The object of Sections 138-142 of the Negotiable Instruments Act, 1881  is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques.[2]”

Section 498-A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression “cruelty” has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of “cruelty”.

  • Economically Weaker Section (EWS) | Reservation For EWSs In Direct Recruitment in Civil Posts And Services In Government of India

  • Adultery [S. 497 IPC and S. 198(2) CrPC]

    The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

    Under Indian law, Section 497 IPC  makes adultery a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. The offence of adultery under Section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.

    Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the offence of adultery[3]which have been held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

  • Maintenance – Wife

“Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. Various laws governing maintenance are as follows:

for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956

for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986

for Parsis – Parsi Marriage and Divorce Act, 1936

for Christians – Divorce Act, 1869

secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954.

  • Live-In Relationship and Indian Judiciary

    It is being truly said that the only thing which is constant in this world is change. Indian society has observed a drastic change in its living pattern in the past few years. People are slowly and gradually opening their minds towards the idea of pre-marital sex and live-in relationships. However, this change has been continuously under criticism and highly discussed as such concepts lack legality and acceptance by society. Unlike marriage, in live-in relationships, couples are not married to each other but live together under the same roof that resembles a relation like marriage. In other words, we can say it is a cohabitation. In India, only those relations between a man and a woman is considered to be legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sort of relationships are deemed to be illegitimate.

    The reason behind people choosing to have a live-in relationship is to check the compatibility between couples before getting legally married. It also exempts partners from the chaos of family drama and lengthy court procedures in case the couple decides to break-up. Whatever the reason, it is very evident that in a conventional society like ours, where the institution of marriage is considered to be “sacred” an increasing number of couples choose to have a live-in relationship, even as a perpetual plan, over marriage. In such circumstances, many legal and social issues have arisen which have become the topic of debate. With time many incidents have been reported and seen where partners in live-in relationships or a child born out of such relationship have remained vulnerable for the very simple reason that such relationships have been kept outside the realm of law. There has been gross misuse by the partners in live-in relationships since they do not have any duties and responsibilities to perform. This article seeks to analyse the judicial response to the concept of live-in relationships so far. It also talks about the rights available to live-in partners in India and also, what is the status of children born out of such relationships.

  • Bom HC | Order of Maintenance under DV Act set aside in absence of any act of Domestic Violence committed by Husband

  • Maintenance – Children and Parents

In India, beneficial provisions for maintenance of children and parents are provided under various Acts. Objective of such provisions is to achieve a social purpose and to prevent vagrancy and destitution and to provide simple, inexpensive and speedy mechanism for providing support and maintenance to children and parents.

“the limited interest or Hindu Woman’s Estate [acquired under Section 3 of the Hindu Women’s Right Property Act] shall be held by the widow as full owner in terms of provisions of Section 14(1) of Hindu Succession Act, 1956?

“Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12.”


† Legal Editor, EBC Publishing Pvt. Ltd.

Foreign LegislationLegislation Updates

The President on 12-01-2019 assented to the Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019. It was passed by the Rajya Sabha on 09-01-2019 as The Constitution (One Hundred and Twenty- fourth Amendment) Bill, 2019.

Highlights of the Act are as under:

Amendment of Article 15:

In Article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

‘(6) Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Amendment of Article 16:

In Article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

“(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the
existing reservation and subject to a maximum of ten per cent of the posts in each category.”

Explanation.—For the purposes of Article 15 and Article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’