reservation

Case BriefsSupreme Court

Supreme Court: In the case relating to the appointments to the post of Police Constables in the State of Uttar Pradesh, the 3-judge bench of UU Lalit, S. Ravindra Bhat and Hrishikesh Roy, JJ., has upheld State Government’s decision of shifting of candidates, who were earlier selected against posts meant for reserved categories, to the open category.

The Court has held,

“With the availability of 3295 additional posts, in the re-working exercise, if the candidates who were already selected against reserved posts were entitled to be considered against open category posts, that exercise cannot be termed as illegal or invalid on any count. These 3295 posts were part of the same selection process initiated in 2013 for filling up 41610 posts and as such the adjustment was rightly done by the State.”

In the present case,

  • By issuing an advertisement on 20.06.2013, selection process was undertaken to fill up 41610 posts of Police Constables [U.P. Civil Police/Provincial Armed Constabulary (PAC)/Fireman]. The petitioners had participated in the selection process as candidates of General Category.
  • After the requisite examinations, results were declared on 16.07.2015, in which 38315 candidates were successful. Thus, as on that date, there were vacancies which were not filled as no suitable candidates were available. About 2312 vacancies had remained unfilled and additionally, there were 982 vacancies arising out of causes such as nonreporting of the selected candidates.
  • In the circumstances, the Supreme Court in Ashish Kumar Yadav v. State of Uttar Pradesh, 2019 SCC OnLine SC 1968 issued following directions:

“It is accepted by the learned counsel for the State that the State did not undertake any process of selection in respect of those 2312 vacancies. In the circumstances it is directed:

    1. A) The State shall within a month from today complete the entire process of selection in respect of 2312 vacancies strictly in accordance with law.
    2. B) The State shall follow the principle of reservation while filling up these 2312 vacancies.
    3. C) While filling up these vacancies, the State shall adhere to the minimum required qualifying marks as devised during the process of selection but subject to this, the State shall consider all eligible candidates and go strictly in order of merit.
    4. D) The State shall before the next date of hearing, shall file a list of all the selected candidates.

It is also accepted that apart from these 2312 vacancies, there are still 982 vacancies to be filled up in the original selection.”

  • Consequently, selection in respect of 3295 posts was undertaken in accordance with the aforementioned direction and hence, certain candidates coming from ‘Reserved Categories’, who were initially selected against Reserved Categories’ seats, were now shown against ‘Open Category’ in the list published on 11.11.2019.

According to the petitioners in the present case, this shifting prejudiced the chances of ‘Open Category’ candidates and that there should not have been any adjustment of the candidates who were already selected in ‘Reserved Categories’ and all those seats should have been made available to the ‘Open Category’.

In response, the State gave details about the last selected candidates in various categories and has stated that the last selected person in ‘General Male Category’ was one Pawan Singh (having secured 313.616 marks). Except the petitioners at serial Nos. 22 and 24, who had secured 313.616 marks, none of the 48 petitioners had secured marks in excess of 313.616. It was stated that since large number of candidates had secured exactly 313.616 marks, tiebreaker principle was adopted in which these two petitioners got eliminated.

Upholding the selection process, the Court held that the selection in respect of 3295 posts was undertaken in accordance with the directions issued by this Court in Ashish Kumar Yadav v. State of Uttar Pradesh, 2019 SCC OnLine SC 1968 and the State Government and its functionaries were obliged to go strictly in order of merit and apply the principle of reservation.

[Pramod Kumar Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 223, decided on 16.03.2021]

*Judgment by: Justice UU Lalit

Know Thy Judge| Justice Uday Umesh Lalit

Appearances before the Court by:

For petitioners: Senior Advocate P. S. Patwalia

For State: Additional Advocate General Vinod Diwakar,

For Intervenors: Senior Advocates B. P. Patil and Vinay Navare

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked,

“State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

In the instant petition the validity of the notifications dated 27-07-2018 and 14-02-2020 issued by the State Election Commission, Maharashtra providing for reservation exceeding 50 per cent in respect of Zilla Parishads and Panchayat Samitis of districts Washim, Akola, Nagpur and Bhandara had been questioned and it was prayed that the same be quashed and set aside. Relying on the dictum of the Constitution Bench in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, the petitioners had urged that it was not open to the respondents to reserve more than 50 per cent (aggregate) seats in the local bodies concerned.

Section 12 of the Act, 1961 had enabled the respondents to reserve 27 % of seats in the concerned Zilla Parishads and Panchayat Samitis. Section 12 of the 1961 Act is reproduced hereunder:

“(c) The seats to be reserved for persons belonging to the category of Backward Class of Citizens shall be 27 % of the total number of seats to be filled in by election in a Zilla Parishad and such seats shall be allotted by rotation to different electoral divisions in a Zilla Parishad :

Provided that, in a Zilla Parishad comprising entirely the Scheduled Areas, the seats to be reserved for the persons belonging to the Backward Class of Citizens shall be 27 % of the seats remaining (if any), after reservation of the seats for the  Scheduled Tribes and the Scheduled Castes”

Position as laid down in K. Krishna Murthy v. Union of India

In the case of K. Krishna Murthy, the constitutional Bench had opined that Articles 243D(6) and 243T(6) of the Constitution were merely enabling provisions and it would be improper to strike them down as violative of the equality clause. That these provisions did not provide guidance on how to identify the backward classes and neither do they specify any principle for the quantum of such reservations. Instead, discretion had been conferred on the State legislatures to design and confer reservation benefits in favour of backward classes. The Bench stated,

“The identification of backward classes for the purpose of reservations is an executive function and as per the mandate of Article 340, dedicated commissions need to be appointed to conduct a rigorous empirical inquiry into the nature and implications of backwardness. It is also incumbent upon the executive to ensure that reservation policies are reviewed from time to time so as to guard against over breadth.”

Further, the Bench observed that It would be safe to say that not all of the groups which had been given reservation benefits in the domain of education and employment need reservations in the sphere of local self government because

“The barriers to political participation are not of the same character as barriers that limit access to education and employment.”

Observation and Analysis

Regarding state legislations providing for reservation of seats in respect of OBCs, the Bench stated that state must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50% of the seats in the local bodies concerned. The foremost requirement was stated to be to collate adequate materials or documents that could help in identification of backward classes for the purpose of reservation by conducting a rigorous empirical inquiry into the nature and implications of backwardness in local bodies concerned through an independent dedicated Commission established for that purpose. The Bench explained,

“In case, constitutional reservation provided for SCs and STs were to consume the entire 50 per cent of seats in the concerned local bodies and in some cases in scheduled area even beyond 50 per cent, in respect of such local bodies, the question of providing further reservation to OBCs would not arise at all.”

Noticing that no material was on record as to on what basis the quantum of reservation for OBCs was fixed at 27%, when it was inserted by way of amendment in 1994 and that there was nothing on record that such a dedicated Commission had been set up, the notifications issued by the State Election Commission to reserve seats for OBCs in respect of which notifications had been challenged, the Court, by an interim direction, had allowed the elections to proceed subject to the outcome of the present writ petitions.

Triple Test for Reservation

Relying on the judgment in K. Krishna Murthy, the Bench reiterated the triple test required to be complied by the State before reserving seats in the local bodies for OBCs:

(1) To set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;

(2) To specify the proportion of reservation required to be provisioned local body wise in light of recommendations of the Commission, so as not to fall foul of over breadth;

(3) In any case such reservation shall not exceed aggregate of 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.

“Shall be” to be interpreted as “May be”

Regarding the question of constitutionality of Section 12(2)(c) of the Act, 1961 as inserted in 1994, the Bench opined that the plain language of the provision indeed gave an impression that uniform and rigid quantum of 27% of the total seats across the State need to be set apart by way of reservation in favour of OBCs. Therefore, to maintain to strike a balance, the Court interpreted the words in a harmonious manner and directed that,

“The expression “shall be” preceding 27% occurring in Section 12(2)(c), be construed as “may be” including to mean that reservation for OBCs may be up to 27 per cent but subject to the outer limit of 50 per cent aggregate in favour of SCs/STs/OBCs taken together…”

Conclusion and Directions

In the light of above considerations, the Bench held that the impugned notifications suffer from the vice of foundational jurisdictional error, therefore, the same were void and without authority of law. Similarly, the elections conducted on the basis of such notifications concerning reserved OBC seats alone were held to be vitiated and non est in the eyes of law from its inception. Also, Noticing that the provisions similar to Section 12(2)(c) of the Act, 1961 find place in other State enactments concerning the establishment of local, the Bench clarified that,

“The view taken in this judgment would apply with full force to the interpretation and application of the provisions of other state Act(s) as well and the State Authorities must immediately move into action to take corrective and follow up measures to ensure that future elections to the concerned local bodies are conducted strictly in conformity with the exposition of this Court in K. Krishna Murthy’s case for providing reservation in favour of OBCs.”

Lastly, the case was disposed of with the following directions:

  1. State Election Commission must take follow up steps and notify elections for seats vacated in terms of this decision for the remainder tenure of Gram Panchayats and Samitis concerned;
  2. Challenge to the validity of Section 12(2)(c) of the Act, 1961 was negatived and the same was directed to be read down to mean that it may be invoked only upon complying with the triple conditions;
  3. All acts done and decisions taken by the concerned local bodies due to participation of members (OBC candidates) who had vacated seats in terms of this decision should not be affected in any manner and the judgment would take affect prospectively.

[Vikas Kishanrao Gawali v. State of Maharashtra,  2021 SCC OnLine SC 170, decided on 04-03-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: A.M. Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Case BriefsSupreme Court

Supreme Court: In the case relating to appointment to the post of Post Graduate Assistants in Chemistry departments for the year 2018-2019 in Tamil Nadu, the 3-judge bench of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ was posed with the question as to whether the candidates who secured high marks should have been fitted in the General Turn but have been fitted in Most Backward Class (MBC)/ Denotified Community (DNC) Quota for the last year, which in turn has deprived certain candidates of selection.

The Court held that the increase in MBC/DNC candidates does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India. Though, of course, it would imply that some of the other candidates from different reserved categories would not be entitled to fill in the reserved seats of MBC/DNC categories, if those seats would have remained vacant.

The Court, however, clarified that these observations were in the context of the controversy before it as the larger issue of reservation beyond 50%, qua Tamil Nadu, is still pending consideration.

Background

Notification was issued on 12.06.2019 by the Teachers’ Recruitment Board, inviting applications online from eligible candidates for direct recruitment to the post of Post Graduate Assistants and Physical Education Directors, Grade-I in school education and other departments for the year 2018-2019 in Tamil Nadu. The filling up of vacancies for the post of Post Graduate Assistants in Chemistry has caused some disputes in which the respondents were applicants. In terms of the notification, a total of 356 posts were notified for Chemistry, out of which 117 vacancies were available for Most Backward Class (MBC) and Denotified Community (DNC) candidates. The break-up of 117 vacancies was of 74 backlog vacancies and 43 current vacancies.

The respondents, among other candidates, applied for the aforementioned post online and appeared in the written examination on 28.09.2019. Post verification of certificates, a provisional selection list was published on 20.11.2019, but the names of the respondents were absent.

The respondents claimed that on scrutinizing the list, they found that the meritorious candidates under the MBC quota, who would have been selected irrespective of any reservation, had not been considered under the general vacancies but had been appointed in the MBC/DNC quota against the backlog vacancies. This had caused the respondents not to be appointed. It was their case that the meritorious candidates were required to be adjusted against vacancies on merit in the General Turn, and it is only thereafter that the backlog vacancies had to be filled in and thereafter, lastly, the current vacancies under the quota had to be adjusted.

Analysis

The Court agreed with the findings of the single and division bench of the Madras High Court, both and explained that the controversy revolved around the interpretation of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

The Section propagates the social philosophy of vacancies for reserved category not lapsing in case there are inadequate number of candidates. Thus, instead of offering it to the general category, a provision has been made to carry forward those vacancies for one year. In case even in the succeeding year, these vacancies are not filled in, then it goes to other categories.

The Single Bench explained that the crucial issue arises from the last sentence of third proviso to Section 27(f) which provides for the selection of appointment for the next direct recruitment to be made “first for backlog vacancies and then the normal rotation shall be followed”. Meaning, thus, has to be assigned to what is implied by the expression “first” vis-à-vis the backlog vacancies.

Section 27(f) merely states that if the required number of candidates belonging to the community which fall under reservation are not available, then, the vacancies, for which selection could not be made in the current year, should be treated as backlog vacancies. In the subsequent recruitment, the backlog vacancies and the current vacancies for the particular community must be separately announced, and the direct recruitment must first accommodate the backlog vacancies and thereafter only, the current vacancies have to be accommodated.

“The provision had been read by the appellants as if the backlog vacancies must be filled in by MBC/DNC category candidates, irrespective of the merit of the candidate or the rank secured by him/her. The highest mark that was secured was 109 and, up to 90 marks, the candidates were fitted in General Turn and thus those candidates will have to be selected under the General Turn, irrespective of their community. It is these candidates who had been fitted in the backlog vacancy which has caused the problem.”

The Division Bench vide the impugned order also opined in the same terms and agreed with the interpretation of Section 27 of the Act by further observing that the proviso which contains the word “first” does not have any relation to the offer and placement of such reserved category candidates, including, Most Backward Classes who attain their position by way of merit in the open category/General Turn vacancies.

Agreeing to both the opinions, the Court said,

“The principle that such of the reservation category candidates who make it on their own merit have to be adjusted against the general category candidates has not been in doubt or argued in view of the catena of judgments cited aforesaid. In our view, Section 27(f) of the Act cannot be read in a manner, apart from any other reason, to negate this very principle.”

It explained that Section 27 deals with the reservation. It has nothing to do with the general candidates list/ General Turn vacancies.

“Such of the candidates who have made it on their own merit albeit, from reserved category, have not sought the benefit of the reservation. Thus, Section 27 of the Act would have nothing to do up to that point. Section 27 would apply only when the reservation principle begins, which is after filling up of the seats on merit.”

Thus, the word “first” would apply at that stage, i.e., the backlog vacancies have to be filled in first and the current vacancies to be filled in thereafter. At the stage when the general category seats are being filled, there is thus no question of any carry forward or current vacancies for reserved category arising at all.

The Court, in Saurav Yadav v. State of Uttar Pradesh, 2020 SCC OnLine SC 1034, stated the steps which have to be taken to fill in the vacancies:

(a) the general merit list to be first filled in;

(b) the backlog vacancies of the particular reserved category to be thereafter filled in “first”; and

(c) the remaining reserved vacancies for the current year to be filled thereafter.

Considering this, the Court said that it appears that such a situation may not arise in the future as all backlog vacancies are stated to have been filled in.

“The performance and merit of candidates, as apparent from the list in question, would itself show as to how many candidates have been successful to attain appointment on a merit position without even availing of reservation- an extremely encouraging aspect!”

Hence, it was held that the increase in MBC/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.

[State of Tamil Nadu v. K. Shobhna,  2021 SCC OnLine SC 179, decided on 05.03.2021]

*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Appearances before the Court by:

For appellants: Senior Advocate C. Aryama Sundaram

For intervenors: Senior Advocate S. Nagamuthu

For respondent: Senior Advocate N.L. Rajah

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Case BriefsHigh Courts

Rajasthan High Court: The  Division Bench of Satish Kumar Sharma and Indrajit Mahanty, JJ., dismissed the petition remitting the matter to State Government for consideration.

The present writ application has come to be filed by the petitioner seeking a direction to the State of Rajasthan to include persons with locomotive disabilities as well as who are hard of hearing (hearing impairment) under the category of reservation for the purpose of induction as employee under the Rights of Persons with Disabilities Act, 2016 i.e. PWD Act, 2016.

Counsel for the petitioners submitted that pursuant to the decision in State of Rajasthan v. Vikas Kumar Agarwal, DB SAW No. 1484/2012, the State of Rajasthan has carried out necessary amendments in the notification and included blind people in the area of reservation for recruitment of Primary School Teachers. It was further submitted that the recent notification issued by the Union of India dated 04.01.2021 notified by the Ministry of Social Justice and Empowerment in terms of which identified posts are to be reserved for persons with disabilities after review of such list. It was also submitted that that in so far as serial No. 1520 is concerned, Primary School Teachers, other persons with hard of hearing (HH) have been included for the purpose of consideration for appointment

Counsel for the respondents submitted that in terms of the notification issued by the State of Rajasthan, the petitioner cannot be given the benefit of reservation or consideration of posting under the Act of 2016 since persons with hearing impairment cannot be inducted as Primary School Teachers.

The Court observed that the State of Rajasthan shall consider amending its earlier notification and to bring it in line with the suggestions made by the Union of India to the extent that the State Government shall issue necessary modified notification under the Act of 2016 and shall reconsider the applicability of the notification issued by the Union of India in all the various departments of the State of Rajasthan within a period of three months from the date of the order.

The Court thus held “the petitioner is not entitled to any relief before the decision of the State Government to be taken in light of the said notification dated 04.01.2021 issued by Union of India.”

In view of the above, petition was dismissed.[Kaushalya v. State of Rajasthan, 2021 SCC OnLine Raj 176, decided on 16-02-2021]

Arunima Bose, Editorial Assistant has put this story together.

Know thy JudgeObituariesOP. ED.

Former Supreme Court judge, Justice P.B. Sawant, a champion of the rights of the poor and oppressed, passed away at the age of 90 in Pune on February 15, 2021.

Born on 30th June, 1930, Justice PB Sawant completed B.A. (Special) Hons. in Economics and LL.B. from Bombay University and started practicing as an advocate in Bombay High Court and Supreme Court of India from 1957. He dealt with cases on vast number of laws like Civil, Criminal, Industrial, Service Election, Constitutional, etc. He was also office bearer and Legal adviser of several Trade Unions and Social and Educational Institutions.

Before becoming a Bombay High Court judge in 1973, Justice PB Sawant also served as a Lecturer in New Law College, Bombay in 1965-66 where he taught Private International Law and Constitutional Law. Elevated to the Bench of the Supreme Court of India with effect from 6th October, 1989, Justice PB Sawant retired on 29th June, 1995.

♦Did you know? Justice PB Sawant served as a High Court judge for over 16 years before being elevated as a Supreme Court Judge. [1]

Here are some his notable quotes:

  • “Equality postulates not merely legal equality but also real equality. The equality of opportunity has to be distinguished from the equality of results. The various provisions of our Constitution and particularly those of Articles 38, 46, 335, 338 and 340 together with the Preamble, show that the right to equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. It is a positive right, and the State is under an obligation to undertake measures to make it real and effectual. A mere formal declaration of the right would not make unequals equal. To enable all to compete with each other on equal plane, it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged. Articles 14 and 16(1) no doubt would by themselves permit such positive measures in favour of the disadvantaged to make real the equality guaranteed by them. However, as pointed out by Dr Ambedkar while replying to the debate on the provision in the Constituent Assembly.”[2]
  • (…) the States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule.[3]
  •  There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law.[4]
  • The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.[5]
  • The correct interpretation to be placed on the expression “the right to practise any profession, or to carry on any occupation, trade or business” is to interpret it to mean the right to practise any profession or to carry on any occupation, trade or business which can be legitimately pursued in a civilised society being not abhorrent to the generally accepted standards of its morality. Human perversity knows no limits and it is not possible to enumerate all professions, occupations, trades and businesses which may be obnoxious to decency, morals, health, safety and welfare of the society. This is apart from the fact that under our Constitution the implied restrictions on the right to practise any profession or to carry on any occupation, trade or business are made explicit in clauses (2) to (6) of Article 19 of the Constitution and the State is permitted to make law for imposing the said restrictions.[6]
  • The desire to be communicable is born with the Man. Hence the freedom of speech and expression is an inherent human right as are some other human rights which are otherwise known as the Civil rights or liberties of the Man. They are not created by any statute whether fundamental or otherwise. They are merely recognised by it. [7]
  • When it is realised that in a democracy, the political executive has a limited tenure and the administrative executive wields the real power, (they can truly be described as the permanent politicians), the antipathy to reservation on a pitched note, propelled by the prospective loss of power, is quite intelligible. The loss of employment opportunities can be made good by generating employment elsewhere and by adopting a rational economic structure with planned economy, planned population and planned education. That is where all sections of the society — whether pro or anti-reservation should concentrate. For even if all available posts are reserved or dereserved, they will not provide employment to more than an infinitesimal number of either of the sections. Unfortunately, it is not logic and sanity, but emotions and politics which dominate the issue.[8]
  • Democracy does not mean mere elections. It also means equal and effective participation in shaping the destiny of the country. Needless to say that where a majority of the population is denied its share in actual power, there exists no real democracy. It is a harsh reality. It can be mended not by running away from it or by ignoring it, but by taking effective workable remedial measures. Those who point to the past achievements and the present progress of the country, forget that these achievements and the progress are by a tiny section of the society who got an opportunity to realise and use their talent. If all sections of the society had such opportunity, this country’s achievements in all fields and walks of life would have been many times more. [9]
  • The preventive detention law by its very nature has always posed a challenge before the courts in a democratic society such as ours to reconcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. Worse still, unlike the latter, it is resorted to prevent the possible misconduct in future, though the prognosis of the conduct is based on the past record of the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority which is not justiciable. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people.[10]
  • Every society is in need of peace, stability and progress without which the building of the nation is not possible. The media as a mass-communicator can help preserve and promote harmony between different social groups as well as between the people and the authorities. It can also help build bridges of understanding, and good-will between the nations and prevent hot and cold wars. It can propose and pursue policies, programmes, projects and measures for the betterment of the people. It may also act as a catalyst of the needed changes and reforms. The legal and administrative measures adopted to alter and improve the conditions of the people need to be pursued constantly, and the media has the capacity to do so by keeping up the pressure, in the absence of which the needed changes may be sought to be brought about by the people through violent and undemocratic means.[11]

†Associate Editor, EBC Publishing Pvt. Ltd. 

[1] Judicial Tenure: An Empirical Appraisal of Incumbency of Supreme Court Judges by Rangin Pallav Tripathy and Gaurav Rai

[2] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 

[3] S.R. Bommai v. Union of India, (1994) 3 SCC 1

[4] Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600

[5] Ibid

[6] Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 

[7] Media in Democracy on the occasion of Justice P.N. Ramaswami Birth Centenary Memorial Lecture, (2000) 2 LW (JS) 74

[8] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 

[9] Ibid

[10] Addl. Secy. to the Govt. of India v. Alka Subhash Gadia (Smt),

1992 Supp (1) SCC 496

[11] Media in Democracy on the occasion of Justice P.N. Ramaswami Birth Centenary Memorial Lecture, (2000) 2 LW (JS) 74

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi J., allowing the present petition, held, “…the retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India”

The present petition has been preferred for quashing advertisement no. 5 of 2019, so far as it relates to the retrospective applicability of 10% reservation for Economically Weaker Section (EWS). Prayer is also made for quashing the decision to conduct a single selection process on the vacancies of the year 2013 and 2015 respectively. Moreover, conducting selection process on the vacancies arrived in the year 2013, 2015 & 2019 separately and independently is also pleaded.

Court considered the following cases, in pursuance of its decision;

M.R. Balaji v. State of Mysore, AIR 1963 SC 649, Supreme Court observed that in the absence of any limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation.

Taking strict view in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, it was held that a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Further, it was said that percentage of reservation should not exceed 50%.

In Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, Constitution Bench of the Supreme Court by its majority view has been pleased to approve the view taken in the case of M.R. Balaji and disapproved the view taken in the case of N. M. Thomas by providing 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.

Further Court considered the observation in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745, wherein it was held that roster system is necessary to be followed in the matter of public employment so that extent of reservation may not exceed to 50% limit taking into account the principle laid down to maintain equality under Article 16 of the Constitution of India, on which balance is maintained.

Reliance was further placed on M. Nagaraj v. Union of India, (2006) 8 SCC 212 and B.K. Pavitra v. Union of India, (2017) 4 SCC 620.

Narrowing down to the facts and circumstances of the present case and the amendment brought for Economically Weaker Section, Court noted, “Admittedly, 103rd Amendment Act, 2019 was made effective with effect from 14-01-2019. The Government of Jharkhand by way of resolution dated 15-02-2019 has also adopted the said amendment. In view of Clause 11 of the resolution dated 15-02-2019, it is clear that the reservation will be effective with effect from 15-01-2019 in subsequent advertisement. Thus, that reservation cannot be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution of India. The Constitution of India is fountain of all the Statutes. 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.” It was further remarked, “The merger of earlier advertisements, which has been made effective retrospectively is against the constitutional scheme.”

While allowing the present petition, Court set aside the impugned advertisement directing the respondent State to put forth the said vacancies separately within eight weeks.[Ranjeet Kumar Sah v. State of Jharkhand, 2021 SCC OnLine Jhar 78, decided on 21-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court Roundups

♦ Did you know? In the year 2020,

    • All the Constitution bench verdicts were unanimous with no dissenting opinion.
    • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

As we look forward to the new year of 2021, here is a quick recap of the Constitution bench verdicts delivered by the Supreme Court of India in 2020.

1. Questions of law can be referred to larger bench while hearing a review petition

9-judge bench: SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ

After renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected, the 9-judge bench held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges. [Read: Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held]

Read more…

[Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52]

2. Pleas challenging the abrogation of Article 370 not referred to a larger bench

5-judge bench: NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ

The bench refused to refer the petitions challenging the constitutional validity of the Centre’s move to abrogate Article 370 to a larger bench. Holding that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash case, the bench said that judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. It noted,

“the Constitution Bench in the Prem Nath Kaul case did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in the Sampat Prakash case where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to read into the Prem Nath Kaul case an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation.”

Read more…

[Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1]

3. No time limit could be fixed while granting anticipatory bail

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.

Read more…

[Sushila Aggarwal v. State of NCT of Delhi,  (2020) 5 SCC 1]

4. No lapse of acquisition proceedings if government has ‘paid’ compensation

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously held that the land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Last year, Justice Arun Mishra, heading the Bench, had refused to recuse himself from hearing the case and had said,

“I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”

Justice Mishra’s recusal was sought on the ground that he was heading a Bench meant to re-examine a judgment that he had himself given in 2018 in in Indore Development Authority v. Shailendra, (2018) 3 SCC 412. 

Read more…

[Indore Development Authority v. Manohar Lal Sharma, (2020) 8 SCC 129]

5. States, and not MCI, have power to make reservation for in-service candidates in Post Graduate Medical Course 

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III.

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

 The Court, however, specifically observed and clarified that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.

Read more…

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699]

6. Sub-classification of Scheduled Castes| E.V. Chinnaiah decision to be revisited; Matter referred to larger bench

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

After noticing that a 5-Judge Bench in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, the bench referred the matter to a larger bench and said,

“Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub¬classification is denied, it would defeat right to equality by treating unequal as equal.”

Read more…

[State of Punjab v. Davinder Singh, (2020) 8 SCC 1]

7. SARFAESI Act applicable to Co­operative Banks

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that ’banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.

Holding that Co­operative bank’s entire operation and activity of banking are governed by a law enacted under Entry 45 of List I, i.e., the BR Act, 1949, and the RBI Act under Entry 38 of List I, the bench said,

“recovery of dues would be an essential function of any banking institution and the Parliament can enact a law under Entry 45 of List I as the activity of banking done by co­operative banks is within the purview of Entry 45 of List I. Obviously, it is open to the Parliament to provide the remedy for recovery under Section 13 of the SARFAESI Act.”

Read more…  

[Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd,  (2020) 9 SCC 215]

8. Andhra Pradesh’s 100% reservation for Scheduled Tribe candidates for the post of teachers without rhyme or reason

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ 

Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the bench said that there was no rhyme or reason with the State Government to resort to 100% reservation.

“It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%.”

Read more…

[Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383]

9. District Forum can’t extend limitation period of 45 days for filing response under Section 13 of Consumer Protection Act

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986.

The bench was answering the reference relating to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986 wherein the answers to the following questions were sought:

  • whether Section 13(2) (a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory; i.e., whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days.
  • what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section.

Read more…

[New India Assurance v. Hilli Multipurpose Cold Storage Pvt. Ltd., (2020) 5 SCC 757]

10. Accused under NDPS Act not entitled to acquittal as a blanket rule merely because the complainant is the investigating officer

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer.

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.”

Read more…

[Mukesh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120]

11. State Government cannot fix the “minimum price” of sugarcane once Centre has already fixed it

5-judge bench: Arun Mishra, Indira Banerjee and Vineet Saran, M.R. Shah and Aniruddha Bose, JJ,

The bench unanimously held that once the Central Government having exercised the power under Entries 33 and 34 List III of seventh Schedule and fixed the “minimum price”, the State Government cannot fix the “minimum price” of sugarcane.

By virtue of Entries 33 and 34 List III of seventh Schedule, both the Central Government as well as the State Government have the power to fix the price of sugarcane. The Court, however, clarified that

“it is always open for the State Government to fix the “advised price” which is always higher than the “minimum price”, in view of the relevant provisions of the Sugarcane (Control) Order, 1966, which has been issued in exercise of powers under Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953.”

Read more…

[West UP Sugar Mills Association v. State of Uttar Pradesh, (2020) 9 SCC 548]

Also read:

Supreme Court year-end roundup| From important judgments to unmissable facts and stories, here’s a comprehensive roundup of all that happened in 2020

Case BriefsSupreme Court

Supreme Court: In the case where OBC female category candidates had challenged the appointment of General category female candidates, who had secured lower marks, as Constables in Uttar Pradesh Police, the 3-judge bench of UU Lalit*, S. Ravindra Bhat** and Hrishikesh Roy, JJ has directed that all candidates coming from ‘OBC Female Category’ who had secured more marks than 274.8928, i.e. the marks secured by the last candidate appointed in ‘General Category–Female’ must be offered employment as Constables in Uttar Pradesh Police.

However, the employment of General Category Females with cut off at 274.8928 are not to be affected in any manner merely because of this judgment.

Background

Pursuant to Supreme Court’s order dated 24.07.2019, selection to the 3295 posts in accordance with merit and consistent with reservation policy of the Government was undertaken by the Uttar Pradesh Government. According to the results declared on 11.11.2019, 188 posts in ‘General Female Category’ were filled up. While doing so, the claim of ‘OBC Female Candidates’ was not considered or taken into account.

The last candidate appointed in the category of ‘General Female’ had secured 274.8298 marks. 21 OBC applicants who secured marks greater than the candidate with 274.8298 challenged the action on part of the State Government in refusing to consider the claim of ‘OBC Female Category’ candidates in respect of ‘General Female Category’ seats.

Lalit, J, for himself and Bhat and Roy, JJ

The Court discussed the views of various High Courts and categorised them as “first view” and the “second view”. The High Courts of Rajasthan, Bombay, Uttarakhand, and Gujarat have adopted the “first view” while dealing with horizontal reservation whereas the High Court of Allahabad and Madhya Pradesh have taken a contrary view i.e. the “second view”.

First view

Candidates belonging to any of the vertical reservation categories are entitled to be selected in “Open or General Category”. If such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong.

Second view

According to the second view, different principles must be adopted at two stages; in that:-.

(I) At the initial stage when the “Open or General Category” seats are to be filled, the claim of all reserved category candidates based on merit must be considered and if any candidates from such reserved categories, on their own merit, are entitled to be selected against Open or General Category seats, such placement of the reserved category candidate is not to affect in any manner the quota reserved for such categories in vertical reservation.

(II) However, when it comes to adjustment at the stage of horizontal reservation, even if, such reserved category candidates are entitled, on merit, to be considered and accommodated against Open or General Seats, at that stage the candidates from any reserved category can be adjusted only and only if there is scope for their adjustment in their own vertical column of reservation.

Such exercise would be premised on following postulates: – (A) After the initial allocation of Open General Category seats is completed, the claim or right of reserved category candidates to be admitted in Open General Category seats on the basis of their own merit stands exhausted and they can only be considered against their respective column of vertical reservation. (B) If there be any resultant adjustment on account of horizontal reservation in Open General Category, only those candidates who are not in any of the categories for whom vertical reservations is provided, alone are to be considered. (C) In other words, at the stage of horizontal reservation, Open General Category is to be construed as category meant for candidates other than those coming from any of the categories for whom vertical reservation is provided.

Analysis of both the views

The second view, based on adoption of a different principle at the stage of horizontal reservation as against one accepted to be a settled principle for vertical reservation, may lead to situations where a less meritorious candidate, not belonging to any of the reserved categories, may get selected in preference to a more meritorious candidate coming from a reserved category as has happened in the present matter.

Admittedly, the last selected candidates in Open General female category while making adjustment of horizontal reservation had secured lesser marks than the Applicants. The claim of the Applicants was disregarded on the ground that they could claim only and only if there was a vacancy or chance for them to be accommodated in their respective column of vertical reservation.

The Court further noticed that if the consideration for accommodation at horizontal reservation stage is only with regard to the concerned vertical reservation or social reservation category, the candidates belonging to that category alone must be considered. For example, if horizontal reservation is to be applied with regard to any of the categories of Scheduled Castes, Scheduled Tribes or Other Backward Classes, only those candidates answering that description alone can be considered at the stage of horizontal reservation.

“But it is completely different thing to say that if at the stage of horizontal reservation, accommodation is to be considered against Open/General seats, the candidates coming from any of the reserved categories who are more meritorious must be side-lined.”

Noticing that the second view is neither based on any authoritative pronouncement by the Supreme Court nor does it lead to a situation where the merit is given precedence, the Court said that subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit.

“Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court.”

Hence, rejecting the second view, the Court held that it will not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open/General seats are reserved for candidates other than those coming from vertical reservation categories.

Bhat, J in his concurring opinion

“Reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.”

[Saurav Yadav v. State of Uttar Pradesh, 2020 SCC OnLine SC 1034, decided on 18.12.2020]

*Justice UU Lalit has penned this judgment. Read more about him here.

** Justice S. Ravindra Bhat has penned a concurrent opinion. Read more about him here. 

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 BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has directed that that there will be no reservation in Super Specialty Medical Courses to in-service doctors for the academic year 2020-2021.

The direction reads,

“… the counselling for admission to Super Specialty Medical Courses for the academic year 2020- 2021 shall proceed on a date to be fixed by the competent authority without providing for reservations to in-service doctors for the academic year 2020-2021.”

Facts considered

  • The information bulletin for admission to Super Specialty Courses for the academic year 2020-2021 was issued on 03.08.2020. Point 5.16 of the bulletin provided that there shall be no reservations of seats for Super Specialty DM/MCH Courses.
  • The NEET Super Specialty Examination was conducted on 15.09.2020 and the results were declared on 25.09.2020.
  • Counselling was scheduled to commence on 08.10.2020.
  • The Medical Counselling Committee issued the counselling scheme for 100 per cent All India Quota for NEET Super Specialty DM/MCH DMB 2020-2021 in which it was made clear that there shall be no reservation for Super Specialty Medical Courses.
  • The State of Tamil Nadu issued a Government Order dated 07.11.2020 by which a decision was taken to reserve 50 per cent of the Super Specialty seats in Government Medical Colleges in the State of Tamil Nadu for in-service candidates.
  • Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 provides for 40 per cent reservation for in-service doctors in admission to the Super Specialty Medical Courses. Admittedly, the Act was not implemented for the years 2017-2019. By the impugned order, the Kerala High Court directed the concerned authorities to carry out the provisions of the Act and provide reservation to in-service Doctors. However, the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020-2021.

Arguments against in-service Reservation

It was argued that the information bulletin made clear to the candidates that there shall be no reservation for admission to Super Specialty Courses. They further contended that the Rules of the game cannot be changed mid-stream and no reservation can be provided for this academic year i.e. 2020-2021 as the procedure for selections for admission to Super Specialty Medical Courses commenced a long time back.

It was also brought to Court’s notice that the 5-judge bench decision in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699[1] was not applicable as the information bulletin for admission to Super Specialty Courses for the academic year 2020-2021 was issued on 03.08.2020 and the judgment that was delivered on 31.08.2020, clearly stated that the judgment shall operate prospectively.

Arguments supporting in-service Reservation

It was argued that administrative inconvenience cannot be a ground to interfere with the order passed by the High Court directing implementation of reservation to in-service doctors in accordance with the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008.

Further, the Constitution Bench in its judgment in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699 only saved the admissions which have already been made. As the admissions for the year 2020-2021 have not been completed, the said judgment has to be implemented for admissions to the academic year 2020- 2021.

What the Supreme Court said

The Court noticed that the process for admissions to Super Specialty Medical Courses started on 03.08.2020 and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty Medical Courses. Hence,

“The Government order issued by the State of Tamil Nadu on 07.11.2020 reserving 50 per cent seats for in-service doctors would be detrimental to the interests of the meritorious Doctors as 50 per cent of the available seats in the State of Tamil Nadu in Super Specialty Medical Courses will not be available to them.”

Rejecting the submission that nobody will be prejudiced if the Government Order is given effect to, the Court said that there will be reduction of 50% of seats in Super Specialty courses in Tamil Nadu if the Government Order is carried out, which is detrimental to their chances of admission.

The Court also took note of the fact that the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 providing for 40 per cent reservation for in-service doctors in admission to the Super Specialty Medical Courses has not been implemented for the years 2017-2019. And the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020-2021.

In the State of Tamil Nadu too, no reservation for in-service Doctors was implemented since 2016.

The Court, hence, held

“As the admission process is at the final stages, we cannot permit reservation for in-service Doctors for this year.”

[Dr. Prerit Sharma v. Dr. Bilu B.S.,  2020 SCC OnLine SC 961, decided on 27.11.2020]

For appellant: Senior Advocates Dushyant Dave and Shyam Divan

For National Medical Commission: Senior Advocate Vikas Singh

For Union of India: Additional Solicitor General Sanjay Jain

For State of Kerala: Senior Advocate Jaideep Gupta

For State of Tamil Nadu: Senior Advocates C.S. Vaidhyanathan and V. Giri,

For Respondents in the Appeal arising out of SLP (C) No.13670-13672 of 2020: Senior Advocate Mr. P. Wilson

For Respondent in Appeal arising out of SLP (C) No.12891 of 2020.: Advocate George Varghese Perumpallikuttiyil

[1] The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699 held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.
Holding that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III, the bench observed that
“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”
The Court, however, specifically   observed   and   clarified   that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment. (Read more…)

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Panda and S. K. Panigrahi JJ., dismissed the petition and called upon the relevant legal stakeholders to ensure that a uniform and well-defined parameter is adopted so that the meritorious candidates do not suffer.

The facts of the case are such that the petitioner has challenged the inaction of opposite party 1 in not considering the application of the petitioner for admission into 5 years BBA LLB (Hons.) Course under NRIs (Non-Resident Indian Sponsored) category for the academic year commencing 2020.

Counsel for the petitioners submitted that when she applied for CLAT (Common Law Admission Test) examination and wanted to apply through NRI quota but selected GENERAL CATEGORY for the same, however, due to COVID outbreak she wasn’t able to modify the quota due to technical glitch on the last date i.e. 15-08-2020. It was further submitted that the petitioner’s name was not found in the merit list where the candidates with a lower rank than that of the petitioner were in the merit list as against NRI/NRIs category.

Counsel for the respondents submitted the petitioner herein has not applied under NRI/NRIs category for the CLAT 2020 Application in spite of several extensions granted to the students by the CLAT Consortium. It was further submitted that there is always the possibility of server down, internet glitch etc. and therefore, it has been advised by the CLAT conducting authority that candidates must apply well before the last date because there tends to be a heavy rush on the use of internet on the last date.

The Court observed that The Opposite Party 1 is bound by the CLAT Rules and Notification. If the petitioner fails to figure in the CLAT 2020 NRI/NRIs category, the Opposite Party 1 cannot change the category of the candidate. Since the petitioner has not applied under NRI/NRIs category in the CLAT 2020 Application, due to the said fact the OP 1 had to reject the candidate’s application.

Court held that changing the category, at this juncture when the admissions are over, would disturb the entire process and jeopardize the interest of so many students.

The Court before disposing off the petition relied on the judgment P. A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 and observed:

“NRIs category is an affront to the meritorious candidates who toiled day night to secure seats in NLUs through CLAT. The candidates belonging to the category of NRI/NRIs, who are very low ranked in the merit list often gets seat in the NLUs whereas the general candidates having secured better marks also lag behind the NRIS students and get disappointed. This is like the reservation for the elite class and this dubious category of quota is unconstitutional.”[Ishika Pattnaik v. National Law University of Odisha,  2020 SCC OnLine Ori 762, decided on 20-10-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and S. Ravindra Bhat, JJ has held that the NRI quota for admission to private medical colleges is neither sacrosanct, not inviolable in terms of existence in any given year, or its extent and the same can be done away with it by the state regulating authority by giving reasonable notice of such a decision to enable those aspiring to such seats to choose elsewhere, having regard to the prevailing conditions.

FACTUAL MATRIX

  • On 17.03.2020, when the NEET PG Medical & Dental Admission/Counselling Board (the Board) convened the meeting attended by representatives of all participating colleges (including private medical colleges offering seats in the postgraduate medical courses in Rajasthan), the unanimous thinking was to offer NRI/Management seats to the extent of 15% of the total admission intake.
  • When the provisional seat matrix was published on 10.04.2020, it did not indicate that those opting for admission exclusively as NRI candidates would be considered as belonging to any other category.
  • On 11.04.2020, the private colleges sent their final matrix to the board. This matrix, unbeknown to the NRI candidates, proposed deletion of the NRI quota.
  • In the circumstances, when the final matrix was published for each college detailing the quotas for individual disciplines, the original earmarking for NRI candidates was absent.
  • On 14.04.2020, a notification was issued by Board stating that that the seat matrix for the current year would not contain the NRI Quota in the private medical colleges of Rajasthan. It read as

“Seat Matrix (13.04.2020) available at the website (compiled on the basis of seats information provided by respective colleges) does not have any NRI seat this year. The candidates who have applied for allotment on NRI seats will accordingly be considered based on their remaining eligibility criteria.”

ARGUMENTS

The students had argued that having held out to all NRI candidates about the availability of seats for that quota as well as the sequence of filling up those seats, at the penultimate hour, the board could not have decided unilaterally or even permitted colleges unilaterally to withdraw the NRI quota seats altogether.

The counsel appearing for the private colleges, on the other hand, urged that the decision not to offer an NRI quota in medical colleges in the state of Rajasthan was voluntarily and consciously taken, given the extraordinary and unusual situation created by the pandemic. The explanation given by the colleges was that in their assessment, NRI quota seats might not have been filled up to the normal expected levels and in the circumstances, it was more appropriate to merge the seats earmarked for NRI candidates with the management seats.

“The accommodation of NRI quota candidates who had opted to be treated as such, in the admission process was transparent and uniform in that all of them were considered on merits for the management quota seats. Thus, there was no real prejudice suffered by such NRI candidates.”

WHAT THE COURT SAID

On PA Inamdar Verdict and its applicability

The four crucial elements in the NRI quota, per PA Inamdar v. State of Maharashtra, (2005) 6 SCC 537 are: one, the discretion of the management (whether to have the quota or not); two, the limit (15%); three, that seats should be available for genuine and bona fide NRI students, and lastly that the quota was to be filled based on merit. However, there is nothing in PA Inamdar to say that a 15% NRI quota is an unqualified and unalterable part of the admission process in post graduate medical courses.

On scope of discretionary power of private medical colleges on NRI quota

A combined effect of the provisions of the Medical Council of India Act and regulations with respect to admissions (which have been progressively amended in respect of eligibility for admission to courses, procedure for admission, etc.) and the decisions of this court, is that private colleges and institutions which offer such professional and technical courses, have some elbow room: they can decide whether, and to what extent, they wish to offer NRI or management quotas (the limits of which are again defined by either judicial precedents, enacted law or subordinate legislation).

However, the discretion of private managements who set up and manage medical colleges cannot be left to such an untrammelled degree as to result in unfairness to candidates. Undoubtedly, these private institutions have the discretion to factor in an NRI or any other permissible quota. Yet that discretion should be tempered; if the discretion to have such a quota is exercised, it should be revised or modified reasonably, and within reasonable time.

On the facts of the case

This case presents some unusual features in that the admission calendar appears to have been thrown out of gear on account of the Covid-19 pandemic. The NEET written test was held in January, and the results were declared on i.e. 31.01.2020. At that stage, and soon thereafter till the end of March, the thinking of the colleges and the board appears to be that the NRI quota in private medical colleges would be maintained (evident from the minutes of meeting dated 17.03.2020).

In terms of the board’s notification of 10.04.2020, the NRI students’ documents were to be verified on 14.04.2020. Apparently, immediately a day after that notification, on 11.04.2020 to be precise, the private colleges en masse appear to have decided not to proceed with the NRI quota and instead ‘merge’ it with the 35% management quota seats, and proceed to fill them entirely based upon rank based merit of the management quota candidates arranged in terms of their ranking and performance in the NEET. NRI candidates were to be treated as management quota candidates, and their applications too, considered on the basis of their overall merit in that category.

Considering the abovementioned facts, the Court noticed that

“Viewed in isolation, this decision is perfectly valid; it gives one the impression that NRI students were not prejudiced. Undoubtedly, the decision to abolish the NRI quota was exclusively within the scope of the private institutions’ decision-making. Yet what is apparent is that by this time, the NRI students had not only started applying for counselling, but had also submitted all their documents for verification to determine their eligibility for the NRI quota seats, and in a sense, committed themselves as candidates for NRI quota seats in Rajasthan for whatever perceived advantages they could reasonably see in their favour. Hence, when the matter stood thus, when the final seat matrices were published on 13.04.2020, it acted to the unfair detriment of these NRI students.”

On relief to the students

In the circumstances of this case and to do justice to all the parties, the Court directed that a special counselling session should be carried out by the board, confined or restricted to the seats in respect of which admissions were made pursuant to the single judge’s directions.

In this counselling session,

  • The board should ensure participation of the concerned colleges; the counselling shall be a limited one, confined only to the number of seats offered and filled as a result of the single judge’s judgment.
  • Such seats shall be offered to the NRI applicants solely on the basis of merit; the seats vacated by such merited students (in the other disciplines) shall then be offered to the beneficiaries of the single judge’s orders.
  • If for any reason, such students (i.e. lower down in NRI merit, who are offered seats in other disciplines) do not wish to take up the offer, the college concerned shall refund the fee collected from such student.

The Court also made clear that this special round of counselling should not disturb those admissions, where students had accepted the deletion of the NRI quota, and were accommodated in the management quota, unless they had approached the court at the earliest opportunity, in April 2020, before the judgment of the learned single judge. The entire process shall be completed with a week.

[Nilay Gupta v. Chairman NEET PG Medical and Dental Admission/Counselling Board 2020 and Principal Govt. Dental College,  2020 SCC OnLine SC 819, decided on 09.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has held that the decision of West Bengal National University of Juridical Sciences, Kolkata (NUJS, Kolkata) to provide 30% reservation from the next Academic Year cannot be said to be contradictory to the amendment to the National University of Juridical Sciences Act, 1999 when the reservation policy of 30% seats was not available on the date when the admission process was initiated.

The Court was hearing the case of a student who had sought admission to the five-year law course offered by NUJS, Kolkata on the basis of the amendment in the West Bengal for short, ‘University’ National University of Juridical Sciences Act, 1999 vide the Amending Act which came into force on 21st May, 2019. The Amending Act inter alia provided for reservation of seats for students domiciled in the State of West Bengal to the extent of at least thirty percent of the total intake of the University.

An advertisement was published on 5th January 2019 by a consortium of National Law Universities in the country to conduct Common Law Admission Test on 12th May 2019 for which the last date of submission of application forms was 31st March 2019. The under-graduate admissions process herein provided for a choice of institution to the candidate, in which such candidate was willing to seek admission based on merit. The date of CLAT was later changed to 26th May 2019 in which the appellant participated and was ranked 731 in the All India Merit List, declared on 14th June 2019. As per the merit list and his choice, he was selected to get admission in National Law University, Odisha but admittedly, he did not join such institution. The University had issued a Brochure to fill up 127 seats based on CLAT merit list. As per the Brochure, 74 seats were meant for general category candidates and 10 seats for West Bengal domiciled candidates including 4 seats for general category.

“The grievance of the appellant was that 30% of the seats were reserved for the students domiciled in the State of West Bengal when the Act was amended on 21st May 2019. The Act had come into force before CLAT was conducted, but the benefit of reservation had not been extended to the students by the University in the Academic Session 2019-2020.”

The Court noticed that the total seats at the University are 127 including the seats meant for State domicile candidates prior to the amendment. The additional seats reserved were required to be provided at the time of initiation of the admission process which started in January, 2019. Each of the candidates intending to appear in the CLAT is required to give three choices for admission into the National Law Universities. The candidates had given these choices keeping in view the reservation policy of each State.

The Court said that since the reservation policy of 30% seats was not available on the date when the admission process was initiated, the decision of the University to provide reservation from the next Academic Year cannot be said to be contradictory to the provisions of the Amending Act. The Act is silent in respect of Academic Year in which the benefit of reservation is to be given.

“The candidates have already applied and given an option for admission in the various National Law Universities before the coming into force of the Amending Act. Therefore, the University extended the benefit of the reservation from the next Academic Session. We find such decision to be fair, reasonable and not arbitrary or capricious.”

[Shrayas Sinha v. West Bengal National University of Juridical Sciences, CIVIL APPEAL NO. 3085 OF 2020, decided on 10.09.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has referred to a larger bench, the substantial question of the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018. It further stayed the implementation of the Maharashtra State Reservation (of Seats for admission in Educational Institutions in the State and for appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 and said,

“Implementation of the Act for admissions in educational institutions and appointments to public posts during the pendency of these Appeals will cause irreparable loss to the candidates belonging to the open category. It will be difficult to cancel the admissions made in the educational institutions and appointments made to the public posts by implementing the reservations as per the Act.”

Background

The said order of the court came in the matter challenging the constitutional validity of a Maharashtra law, which grants reservation to the Maratha community in education and jobs. The plea had challenged the Bombay High Court order that upheld the constitutional validity of the quota for the Maratha community in education and government jobs in Maharashtra. Bombay High Court had on June 27, 2019, said the 50 per cent cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances.

The Maharashtra State Reservation (of Seats for admission in Educational Institutions in the State and for appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 which came into force on 30.11.2018, declared Marathas to be a “Socially and Educationally Backward Class”. Reservations to the extent of 16 per cent of the total seats in educational institutions including private educational institutions and 16 per cent of the total appointments in direct recruitment for public services and posts under the State, were separately made for “socially and educationally backward classes” according to Section 4 of the Act.

Observations by Supreme Court

On reference of appeals to a larger bench

Stating that it did not agree with the argument that the Appeals warrant reference to a larger Bench, the Court said that

“Undoubtedly, this Court in Indra Sawhney held that reservations contemplated in Article 16 (4) should not exceed 50 per cent except in certain extraordinary situations. This Court in Indra Sawhney was of the opinion that extreme caution has to be exercised and a special case must be made out for exceeding the limit of 50 per cent. The ceiling limit of 50 per cent on reservations has been re-affirmed by this Court in M. Nagaraj (supra). As the question relating to the extent of reservation has already been decided by this Court, it cannot be said that any substantial question of law as to the interpretation of the Constitution arises in this case.”

On reference of question of interpretation of the Constitution (102nd Amendment) Act, 2018

The High Court has considered the issue whether the Constitution (102nd Amendment) Act, 2018 affects the competence of the State Legislature to declare a particular caste to be a socially and educationally backward class. According to the writ petitioners in the High Court, the State Legislature has been denuded of this power after the Constitution (102nd Amendment) Act, 2018 came into force. The High Court rejected the said contention and upheld the legislative competence of the State Legislature. There is no authoritative pronouncement on the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018.

The Supreme Court found force in the submissions made on behalf of the Respondents relating to the Constitution (102nd Amendment) Act, 2018. It said,

“interpretation of Articles 338-B and 342-A, which are inserted by Constitution (102nd Amendment) Act, 2018, involves a substantial question of law as to the interpretation of the Constitution and the determination of such question is necessary for the disposal of the Appeal. Thus, as mandated by Article 145 (3) of the Constitution of India, these Appeals require to be considered by a larger Bench.”

On passing interim order

Noticing that no doubt true that the Act providing reservations has been upheld by the High Court and the interim relief sought by the Appellants would be contrary to the provisions of the Act, the Court said that

“However, if the Court is convinced that the statute is ex-facie un-constitutional and the factors like balance of convenience, irreparable injury and Public Interest are in favour of passing an interim order, the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation. Unless the provision is manifestly unjust or glaringly un-constitutional, the courts do show judicial restraint in staying the applicability of the same.”

It said that normally an interim order is not passed to stultify statutory provisions. However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this Court.

On the applicability of law laid down in Indra Sawhney

Applying the law laid down by the Court in Indra Sawhney v. Union of India,1992 Supp. (3) SCC 217, the Court was of the prima facie opinion that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent.

“Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the society living in far flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so.”

The Court explained that the factors termed as extraordinary and exceptional, justifying reservations in excess of 50 percent are those required for the purpose of providing reservations. The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.

It was, hence, prima facie of the opinion that the High Court committed an error in treating the above factors as circumstances which are extraordinary, warranting relaxation of the strict rule of 50 percent. Admittedly, reservations provided to the Maratha community were implemented in educational institutions for one academic year only. It, hence, observed,

“Implementation of the Act for admissions in educational institutions and appointments to public posts during the pendency of these Appeals will cause irreparable loss to the candidates belonging to the open category. It will be difficult to cancel the admissions made in the educational institutions and appointments made to the public posts by implementing the reservations as per the Act.”

Directions

(A) As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon’ble The Chief Justice of India for suitable orders.

(B) Admissions to educational institutions for the academic year 2020-21 shall be made without reference to the reservations provided in the Act. We make it clear that the Admissions made to Post-Graduate Medical Courses shall not be altered.

(C) Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act.

[Dr. Jaishri Laxmanrao Patil v. The Chief Minister, 2020 SCC OnLine SC 727, decided on 09.09.2020]

Hot Off The PressNews

Karnataka High Court: The Division Bench of B.V. Nagarathna and Ravi Hosmani, JJ.,  granted an interim stay on the National Law School of India University (NLSIU) Amendment Act, 2020, by which 25% of reservation was introduced to the candidates from the State of Karnataka

Stay on 5% concession in marks for Karnataka students has also been put.

High Court directed the NLSIU to prepare a new list. Further, the bench stated that the list, however, will be a provisional one and will be subject to the final orders on the petitions.

NLSIU will have it as 120 seats. However, NLSIU is directed to prepare a merit list as per the impugned Amendment and the 5% concession. The same is to be kept it in a sealed cover and NLSIU is directed to publish only the merit list without the Amendment for now.

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.

Holding that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III, the bench observed that

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

The Court, however, specifically   observed   and   clarified   that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.

KEY HIGHLIGHTS OF THE 242-PAGES LONG VERDICT

On the scope of “coordination and determination of standards” under Entry 66 List I

Entry 66 List I is a specific entry having a very limited scope and only deals with “coordination and determination of standards” in higher education. The term “coordination and determination of standards” means   laying   down   the   said standards and therefore when it comes to prescribe the standards for such institutions of higher learning, exclusive domain is given to the Union.  Further, it would not include conducting of examination etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc.

“Thus, in exercise of powers under Entry 66 List I, the Union cannot provide for anything with respect to reservation/percentage of reservation and/or even mode of admission within the State quota, which powers are conferred upon the States under Entry 25 of List III.”

On the scope of MCI’s power to frame regulations with respect to reservation

The Medical  Council   of   India which  has  been constituted   under   the   provisions   of   the   Indian Medical   Council   Act,   1956   is   the   creature   of   the statute  in  exercise  of  powers  under  Entry  66 List  I and   has   no   power   to   make   any   provision   for reservation,   more   particularly,   for   in-service  candidates  by   the   concerned  States,   in   exercise  of powers under Entry 25 List III.

Section 33 of the MCI Act does not confer any authority and/or power to the MCI to frame the regulations with respect to reservation in the medical courses, more particularly, to provide for a separate source of entry for in-service   candidates   seeking   admission   to   postgraduate   degree courses, as sought to be contended on behalf of the MCI and counsel opposing for providing for a separate source of entry for in-service candidates.

“… it cannot be said that the Medical Council of India would have any authority or jurisdiction to   frame   any   regulations   with   respect   to   reservation   and/or making special provision like providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses.”

On the validity of Regulation 9 of MCI Regulations, 2000

Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III.

“…if   it   is   held   that   Regulation   9,   more particularly, Regulation 9(IV) deals with reservation for   in-service   candidates,   in   that   case,   it   will   be ultra vires of the Indian Medical Council Act, 1956 and   it   will   be   beyond   the   legislative   competence under Entry 66 List I.”

Regulation 9 of MCI Regulations, 2000 to the extent tinkering with reservation provided by the State for in-service candidates is ultra vires on the ground that it is arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India.

On the need for in-service quota

There is a legitimate and rational basis in providing a separate channel/source of entry for in-service candidates in order to encourage them to offer their services and expertise to the State. There is a sufficient nexus with the larger goal of equalization of educational opportunities and to sufficiently prefer the doctors serving in the various hospitals run and maintained out of public funds, in the absence of which there would be serious dearth of qualified Post-graduate doctors to meet the requirements of the common public.  It is stated that the Government is facing public health crisis. The effective and competent medical treatment is not available in the rural and difficult areas.  In-service doctors who pursue higher studies would naturally serve in rural and difficult areas if such incentive in the form of reservation is provided.

“The action of the State to provide for the in-service quota is in the discharge of its positive constitutional obligations to promote and provide better health care facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may get more specialized health care facility. Such action is in discharge of its constitutional obligations as provided in Article 47 of the Constitution of India, which is the corresponding fundamental right of the citizens protected under Article 21 of the Constitution of India.”

On State’s power to provide in-service Quota

The power of the State under Entry 6, List II of Schedule VII to legislate in the subject matter of public health and hospital is exclusive. When the State provides a separate source of admission for in-service doctors as a distinct class and within the State quota and the object is laudable, the State is within its power to provide such separate source of admission in exercise of the powers under Entry 25 List III, read with Entry 6, List II.  It cannot be said that there is no nexus with the laudable object of meeting the requirement of qualified postgraduate doctors for the public health services, more particularly, in the rural, tribal and difficult areas.  As such, there is no conflict between the power of the Union and the State.

 The occupied field of Union legislation in exercise of power under Entry 66, List I is related to minimum standards of medical education and the State   is   providing the in-service quota without impinging the prescribed minimum standards.

“State is within its power and authority to provide such a preferential treatment to provide a better public health in the rural, tribal and hilly areas.”

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699, decided on 31.08.2020]

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of SA Bobde, CJ and R. Subhash Reddy and BR Gavai, JJ has referred to a 5-judge Constitution Bench pleas challenging the Constitution (One Hundred and Third Amendment) Act, 2019 which provides for grant of 10% quota to Economically Weaker Sections (EWSs) in jobs and admissions in the general category. The bench said that a larger bench will decide the pleas filed by 35 petitioners challenging Centre’s decision.

“for the purpose of deciding any case involving a substantial question of law as to interpretation of the Constitution it is to be heard by a Bench of five Judges.”

By virtue of Article 15(6) of the Constitution, States are empowered to make a special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) and to make a special provision relating 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, in addition to existing reservations and subject to a maximum of ten per cent of the total seats in each category. Similarly, Article 16(6) empowers the State to make 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.

It is the case of the petitioners Janhit Abhiyan, an NGO, that the impugned amendments violate the basic structure of the Constitution mainly on the ground that the existing provisions of the Constitution empower to provide affirmative action only in favour of socially backward classes. It is for the first time that by the impugned amendments in the Constitution itself the new clauses are incorporated enabling the State to provide affirmative action by way of reservation to the extent of 10% in educational institutions and for appointment in services to economically weaker sections of society. The Petitioners have argued that the economic criteria alone cannot be the basis to determine backwardness as per the 9-Judge Bench judgment of this Court in the case of Indira Sawhney v. Union of India, (1992) 3 SCC 217. It is also the case of the petitioners that exceeding the ceiling cap of 50% is also in violation of the very same judgment of this Court.The quota will be over and above the existing 50 per cent reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBCs).

It has further been argued that by virtue of the impugned amendments, very Constitution is amended by inserting new clauses in Articles 15 and 16 thereof, which empower the State to make reservations by way of affirmative action to the extent of 10% to economically weaker sections

“the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion.”

After considering the submissions of the petitioner, the Court said that such questions do constitute substantial questions of law to be considered by a Bench of five Judges. It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard a Bench of five Judges.

“Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above.”

The Court also took note of the submission of the Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections. The Court noticed that even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges as per Article 145(3) of the Constitution read with Order XXXVIII Rule 1(1) of the Supreme Court of Rules, 2013.

[Janhit Abhiyan v. Union of India, 2020 SCC OnLine SC 624 , decided on 05.08.2020]

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Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan, J. addressed a matter wherein 100 % reservation in public employment for J&K domiciles in the UT has been challenged.

Petitioner’s 1 and 3 are domiciles of the State of Haryana and Petitioner 2 a permanent resident of the erstwhile State of Jammu and Kashmir who is now a resident of UT of Ladakh.

Petitioners challenged Sections 3A, 5A, 6, 7, and 8 of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, on the ground that the same is violative of Article 14, 16, 19 and 21 of the Constitution of India.

Petitioner contended that Parliament has never delegated the law-making power of Article 16(3) of Constitution to the Central Government under Section 96 of Jammu and Kashmir Reorganization Act, 2019. 

“…power delegated under Section 96 was only for the purpose of facilitating the applications of already prevailing law in former State of Jammu and Kashmir or to make laws applicable to new Union Territories of J&K and Ladakh.”

Further, it was contended that the power delegated under Section 96 shall not be in any manner construed as a delegation of parliamentary power of Article 16(3) of the Constitution of India.

By amending Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 by two executive orders dated 31-03-2020 and 03-04-2020, the Union Ministry of Home Affairs has debarred the non-domiciles from employment in J&K.

After the amendment in Section 96, the term “Permanent Resident of J&K” was replaced by “Domiciles” of UT of J&K.

Court directed for issuance of notice to the respondents. Matter to be listed on 03-09-2020. [Nishant Khatri v. UOI, 2020 SCC OnLine J&K 380, decided on 04-08-2020]

Op EdsOP. ED.

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

Article 15(1) of the Constitution of India

Introduction

Reservations are the biggest enemy of meritocracy. By offering reservation through relaxed entry criteria, we are fuelling inflation of moderate credentials as opposed to the promotion of merit-based education system, which is the foundation of many progressive countries. Meritocracy should not be polluted by injecting relaxation of entry barriers, rather should be encouraged by offering financial aids to the underprivileged although deserving candidates only.

From a political science perspective, the State has the obligation to look after the welfare of its subjects. The Government although justifies its reservation policies on grounds of confidence building and providing equality of opportunity to the disadvantaged sections of the society, the reservations basing on domicile and residence is entirely a separate infringement. The State subsequently has deprived the meritorious class through an unreasonable and perverse domicile reservation. This marks the departure from the field of justness, fairness and reasonableness guaranteed by the rule of law that is supposed to be supreme in our constitutional set-up.

Understanding Domicile

Domicile as a concept is of immense importance, both in municipal law as well as in private international law or the conflicts of laws, as it is called. The concept denotes “the place of living”, or more precisely a permanent residence. Domicile is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law.[1] Although the notion which lies behind the concept of domicile is of “permanent residence” or a “permanent home”, yet domicile is primarily a legal concept for the purposes of determining what is the “personal law” applicable to an individual and therefore, even if an individual has no permanent residence or permanent home, even then he is invested with a “domicile” albeit by law or implication of law. 

Now, it has been argued at various places that the term “place of birth” occurs in clause (1) of Article 15 but not “domicile”. If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to “place of birth” alone, the latter refers to both “domicile” and “residence” apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression “place of birth” is not synonymous to the expression “domicile” and they reflect two different concepts. But it is also true that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly.

That certainly is not an issue. The deprivation of seats at educational institutions of national importance to deserving and meritorious candidates merely because they are resident in a different State creates an unjustified classification which assails Article 14 which has a wider ambit than Article 15(1).

Flawed Justifications

A perusal of the analysis of Pradeep Jain v. Union of India[2] that invalidated wholesale reservation on the basis of domicile or residence, and D.P. Joshi v. State of M.B.[3] reveals that two considerations have weighed with the courts in justifying departure from the principle of merit-based selection viz.:

(1) The claim of State interest in providing adequate medical service to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the State as doctors i.e. doctrine of sons of soil.

(2) The region’s claim of backwardness.

Now, even a certain amount of reservation on the basis of domicile and residence would mean discrimination as even a minimal departure creates an irrational class depriving a meritorious candidate of his fundamental rights and these justifications listed above are as fallacious as they can be. Firstly, there appears to be no reasonable guarantee that an individual having his residence in a State would practice a profession in his own State after he has graduated. Various surveys[4] have reflected that a very high majority of individuals getting admission under domicile reservation quotas, after graduation, pursue their careers in different States or in fact owing to globalisation, in different countries. Secondly, there is absolutely no rationale behind employing domicile-based reservations to curb backwardness as a person having or not having residence in a particular State has nothing to do with backwardness. It thus seems that there clearly has been an error in identifying the source of the problem.

The Court has, no doubt, by its decisions in D.P. Joshi case[5] and N. Vasundara v. State of Mysore[6] sustained the constitutional validity of reservation based on residence requirement within a State for the purpose of admission to medical colleges. But it is essential to note that the reasoning behind this appears to have been per incuriam. The Court believed that if admissions are given on the basis of all-India national entrance examination, each individual would have an equal opportunity of securing admission, but that would not take into account diverse considerations, such as, differing levels of social, economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties which may be experienced by students from one region who might in the competition on all-India basis get admission to the MBBS course in another region far remote from their own and other allied factors.

But if that were the case, then reserving seats for candidates from a single State would hardly serve the purpose since similar or higher social and educational backwardness is likely to exists in other States. The Court has rightly viewed that a brilliant student should not be impeded from getting his deserved share of education on geographical grounds when there is a common examination for determining merit.[7]”

An Unusual Political Organisation

State domicile quotas are hence nothing but the State exercising its powers for the welfare of the people which would have been entirely fair had it not been with respect to universities of national importance. The State Governments must aim at welfare of individuals belonging to their State but such reservations may focus on the social and educational backward classes of people appearing for the State entrance examinations. Once there is a university of national importance allotting seats on the basis of an all-India entrance examination, allowing reservation on the basis of residence in a particular State would be as discriminatory as intra-State domiciliary classification which has been held to be discriminatory in A. Peeriakaruppan v. State of T.N.[8] There in fact is a huge hue and cry about economic backwardness which has also formed a ground for allowing reservation. If we look carefully, Article 15(4) frees the State from restrictions on making reservation policies with regards to socially and educationally backward classes only. Nowhere does the Constitution talk about economic backwardness and it has also been held in Janki Prasad Parimoo v. State of J&K[9] that mere poverty cannot be a consideration for the test of backwardness for the purpose of enabling reservations.

Delhi University, a Central university in the capital of India was not to be left behind. In 1978, the 48% reservation quota for Delhi graduates for admission to postgraduate medical courses was raised to 70% with entry point left open to them from the rest of the 30% “open” (for Indians) seats also. The University justified the reservation on the ground that all other universities practised university-wise reservations. The Health Minister of India justified it on the ground that the students had fasted at his residence for raising the limit and the Supreme Court justified it in Jagadish Saran v. Union of India[10], on the grounds that the Delhi students were from families drawn from all over India, not sons of the soil. The practice of reservation by all other universities prejudiced Delhi students’ chances—this indirect, real yet heavy handicap created discrimination and cannot be wished away and needs to be corrected by some percentage of reservation or other legitimate device, and that the Delhi students could not be made martyrs of the Constitution.[11]

The question that arises is whether in a federal structure, the State Governments by the mere virtue of funding universities have the power to make such laws which favour individuals residing in their State. It is true that with respect to subjects set out in List II of the Seventh Schedule to the Constitution, the States have the power to make laws and subject to the overriding power of Parliament, the State can also make laws with respect to subjects enumerated in List III of the Seventh Schedule to the Constitution, but the legal system under the rubric of which such laws are made by the States is a single legal system which may truly be described as the Indian legal system. It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the State have power to make laws.

“Education” appears both in the Union List as also in the Concurrent List. The relevant entries in the Constitution are as under:

List I? 66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

List III? 25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.

Now, in a democratic set-up, the mere fact that a national university is being funded by a State Government does not give the State Government the power or privilege to reserve seats for individuals resident within its territory. The federal structure of India is one of cooperative nature where the powers are distributed between the Centre and the States and exercised in cooperation with each other. Under the Indian Constitution, there are certain provisions[12] which authorise federal supervision of local execution of national laws. These provisions reflect the supremacy of the Union over the States.

Article 1, which describes India as a Union of States reflect the kind of federalism prevalent in India. Article 258 of the Constitution empowers the Union to confer powers in the State in certain cases. In funding and managing the educational institutions in their respective territories, the State Governments are carrying out the functions of the Centre in allegiance to the federal structure. The States are simply alleviating additional burden on the Centre and by doing so, cannot and should not confer themselves with power to an extent of creating a separate power as strong as the Centre. If the State Governments make laws to favour their students on a national platform, this would be like the State becoming a separate entity from the Union which is forbidden. This would defeat the whole purpose of having a State as an organisational set-up.

Halsbury’s Law of England too states as under: 

In federal States some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the State or provinces of the federation and the individual will be domiciled in one State or province only. [13]

For this very reason, Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, “domicile in the territory of India”. The Court in Pradeep Jain case [14] observed that:

“8. … It is dangerous to use a legal concept for conveying a sense different that which is ordinarily associated with it as a result of legal usage over the years. Therefore, it is strongly urged upon the State Government to exercise this wrong use of the expression “domicile” from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions.”

However, in respect of considering the word “domicile” as residential requirement, the Supreme Court unreservedly condemned wholesale reservation made by some of the State Governments on the basis of “domicile” or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit.””

Conclusion

What is therefore necessary, is to set up proper and adequate structures in rural areas where competent medical services can be provided by doctors and some motivation must be provided to the doctors servicing those areas. But, as the position stands today, there is considerable paucity of seats in medical colleges to satisfy the increasing demand of students for admission and some principle has, therefore, to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Article 14.

It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases, would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State B. It is axiomatic that talent is not the monopoly of the residents of any particular State; it is more or less evenly distributed and given proper opportunity and environment, everyone has a prospect of rising to the peak. What is necessary is equality of opportunity and that cannot be made dependent upon where a citizen resides. If every citizen is afforded equal opportunity, genetically and environmentally, to develop his potential, he will be able in his own way to manifest his faculties fully leading to all-round improvement in excellence. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set-up. Moreover, it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote substandard candidates and bring about fall in medical competence, injurious in the long run to the very region. It is no blessing to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold.

Parliament has also the legislative competence in terms of Entry 25, List III of the Seventh Schedule to the Constitution to make laws involving the subject-matter of education. It, for education and particularly higher education where excellence is required, while enacting law must also foresee that in the era of liberalisation and globalisation, Indian citizens must compete with their counterparts of the developed countries. Merit, thus, must be allowed to explore to the fullest extent. Genius hidden in the citizens must be allowed to blossom.[15] The State is a politically organised society and each organisation within the State is expected to cooperate with every other organisation for the achievement of the State’s objectives. The State here is the Union of India and its objectives are to holistically ensure benefits to every section of the society. Also, in achieving such ends, importance must be given to the basic philosophies of human existence i.e. to give every individual what he deserves.

Universities, admission to which is done through merit at an all-India examination are universities of national importance and takes aspiring students from throughout India. So, where reservations for Scheduled Castes and Scheduled Tribes are for the whole of the country, reservations on the basis of residence or domicile in a particular State is unjust. Thus, although some reservations may still be necessary for the socio-political condition in India, reservation on the basis of domicile or residence within a State for admissions to universities of national importance would be highly discriminatory and utterly perverse.”

* Student, BA LLB (Hons.), National University of Study and Research in Law.

[1] Halsbury’s Laws of England (Fourth edn.), Vol. 8, para 421.

[2] (1984) 3 SCC 654

[3] (1955) 1 SCR 1215

[4] Government of India, Ministry of Human Resource Development Department of Higher Education 2013, All India Survey on Higher Education.

[5] (1955) 1 SCR 1215

[6] (1971) 2 SCC 22

[7] Nidamarti Maheshkumar v. State of Maharashtra, (1986) 2 SCC 534

[8] (1971) 1 SCC 38

[9] (1973) 1 SCC 420 

[10] (1980) 2 SCC 768

[11] Id., p. 787

[12] Constitution of India, Articles 256, 257 and 258.

[13] Halsbury’s Laws of England (Fourth edn.),Vol. 8.

[14] (1984) 3 SCC 654 at p. 668

[15] Saurabh Chaudri v. Union of India, (2003) 11 SCC 146

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that there was no rhyme or reason with the State Government to resort to 100% reservation.

“It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%.”

The Court noticed that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again.  But instead, it issued G.O. Ms. No.3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible.

Agreeing to the apprehensions of the appellants that the State may again by way of mis­adventure, resort to similar illegal exercise as was done earlier, the Court directed the State of Andhra Pradesh to not exceed the limits of reservation in future. It said,

“In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date.”

The Court also held that the notification in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India.

It, further, held that the conditions of eligibility in the notification with a cut­off date, i.e., 26.1.1950, to avail the benefits of reservation, were also unreasonable and arbitrary.

The Court also answered, in detail, the questions relating to scope of power of the Governor. Here’s a summary of the other questions referred to and answered by the Court:

Scope of paragraph 5(1), Schedule V to the Constitution of India:

Under Para 5(1), Fifth Schedule of the Constitution, the Governor can:

  • exercise the powers concerning any particular Act of the Parliament or the legislature of the State.
  • direct that such law shall not apply to the Scheduled Areas or any part thereof
  • apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect.

Governor’s power to make a new law

Under Para 5(1), Fifth Schedule of the Constitution, the Governor can:

direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications.

make a provision within the parameters of amendment/modification of the Act of Parliament or State legislature.

“The power to make new laws/regulations, is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India.”

Does the power to make new laws extend to subordinate legislation?

No, the power does not extend to subordinate legislation, it is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State which can be dealt with.

Can the exercise of the power conferred Under Para 5(1), Fifth Schedule of the Constitution override fundamental rights guaranteed under Part III?

The power is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution.

Does the exercise of such power override any parallel exercise of power by the President under Article 371D?

No, the Governor cannot override the notification issued by the President in the exercise of powers under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof.

[Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383 , decided on 22.04.2020]