Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While deliberating upon the instant writ petitions for quashment of FIR registered in connection with the suicide of prominent tribal leader Mohanbhai Sanjibhai Delkar,(MP, Dadra and Nagar Haveli), the Division Bench of Prasanna B. Varale and Shrikant D. Kulkarni, JJ., exercised their powers under Section 482 of CrPC and quashed the FIR filed against Praful K. Patel (Administrator, Dadra and Nagar Haveli) and others by Mohan Delkar’s son Abhinav Delkar.

Background

Mohanbhai Sanjibhai Delkar (the deceased) was a prominent tribal leader and was representing Dadra and Nagar Haveli since 1989 as Member of Parliament. On 21-02-2021, Mohan Delkar along with driver Ashok Patel and private bodyguard Nandu Wankhede reached Mumbai for attending some Court matter. The deceased was staying at Sea Green South Hotel, Marine Drive. On 22-02-2021 the deceased committed suicide by hanging in his hotel room. The deceased’s son, Abhinav Delkar was intimated of the turn of events through driver Ashok Patel. A suicide note and minutes of Parliamentary Privilege Committee were recovered from the scene. Abhinav Delkar recorded his statement with the police and the same statement was treated as First Information Report.

In the FIR it was stated that the deceased was subjected to ill-treatment, harassment and defamation at the instance of certain persons. It was also stated that this ill-treatment and harassments were done under the orders of Praful Khoda Patel, Administrator, Dadra and Nagar Haveli. Since the deceased was unable to bear this harassment, he committed suicide. It was stated in the FIR that the petitioners by hatching a conspiracy created such an atmosphere of pressure and depression which led the deceased to end his life.

The FIR against 9 persons was registered for offences punishable under Sections 306 (Abetment to suicide), 506, 389, 120-B of Penal Code, 1860 read with relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The FIR further stated that the deceased was representing Dadra and Nagar Haveli since 2019 as an independent Member of Parliament (MP) and he belonged to a scheduled tribe community (Dhodia Patel). It was further stated that the deceased was continuously taking steps for the development of the area and in the past 1 year he was under tremendous pressure as the administration of Dadra and Nagar Haveli was continuously harassing and ill-treating him. The motive behind this harassment and ill-treatment was to take control over the college being run by the deceased and to prevent him from contesting the next elections.

Contentions of the Petitioners

The counsel of each petitioner made detailed submissions before the Court, the crux of which was-

  • It was contended that taking the FIR as it stands would only reflect that deceased himself admitted that he was active in social and political life for a considerably long period; had faced many adversities, and, was bold enough to face these difficulties and proceed further in his active political career.
  • It was submitted the deceased only made assumption and presumption that officers in the administration were acting under the orders of the Administrator and that the private individuals were hand in glove with the Administrator and were acting vindictively against the deceased.
  • It was also contended that the copy of the suicide note was not made available to the Petitioners and it is only referred to in the FIR. Since this material itself is undisclosed and withheld, therefore the petitioners are left only to guess work.
  • It was submitted that as far as the incidents quoted in the FIR are concerned, there is no proximity of these incidents and the act of committing suicide by deceased. Mere assumption and presumption are not sufficient enough to attract the provisions of the IPC. The FIR is silent on the aspect of the enmity or grudge being carried by the petitioners against the deceased; general and baseless statement that the petitioners joined together and hatched conspiracy under the direction of the Administrator is wholly unsustainable.

Contentions of the Respondent

Meanwhile the respondents contended that-

  • Conspiracy was hatched under the directions of the Administrator and pursuant to the conspiracy the petitioners harassed the deceased. Submitting details about the various incidents as referred to in the FIR, the counsels stated that though they are different incidents, however, a common thread in all these incidents is that they lead to the humiliation and harassment of the deceased.
  • It was submitted that FIR is not an encyclopedia as such, the investigating agency, upon lodging of FIR conducts the investigation and further material is collected or unearthed in the investigation.
  • It was submitted that though commission of suicide is a final act, the process of abetment to suicide is a complex one. There are certain causes for commission of suicide and consideration of these causes can be set as dynamics of suicide. It was stated that broadly there are two reasons for commission of suicide i.e., internal or personal reason and secondly, external factors. The effect of these two factors depends upon the sensitivity of a person.
  • It was contended that the investigation is still in progress, therefore, this is not a fit case for exercising powers under Section 482, CrPC.

Findings

Upon perusal of the contents of the FIR and noting the contentions raised by all the petitioners, the Court was of the opinion that that there are considerable merits in the submissions raised by the counsels appearing for Petitioners.

The Court agreed with the petitioners that the deceased was active in social and political life for a long period and faced many difficulties in life boldly and the alleged incidents of ill-treatment stated in the FIR were mere impressions carried out by the deceased. The Court noted that the petitioners presented sufficient material to show that the deceased was never disrespected in any of the public functions and proper protocols were followed considering the deceased’s stature.

Concerning the powers of the Court under Section 482, CrPC, it was observed by the Bench that while exercising powers under Section 482, the Court is not expected to undertake the exercise of detailed scrutiny or assessment of the material collected in the investigation, and it is expected from the Court to go through the contents of the FIR and material along with it.

The Court also agreed with the petitioners that the contents of the FIR fall short in order to attract Section 120-B of IPC. In order to attract Section 120 (B), there must be positive material to show that the petitioners came together to hatch a conspiracy and effect was given to that conspiracy. In the present case, except bare words that the petitioners were acting under the directions of Administrator, there is not a single incident to show that these petitioners came together and acted under the dictates of the Administrator.

Concerning offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Court pointed out that the FIR also falls short in attracting the charges under the 1989 Act.

Regarding Section 306 of IPC, the Court noted that there must be material of a positive act, as a pre-requisite for satisfying the word ‘abetment’, the contents of FIR and reference made to incidents falls too short to show any positive act committed by the petitioners so as to satisfy the term ‘abetment’.

[Sharad Darade v. State of Maharashtra, WP No. 1806/2021, decided on 08-09-2022]


Appearances

For State: AS Pai, PP


*Sucheta Sarkar Editorial Assistant has prepared this brief

 

 

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. in the present case took opportunity to point out a trend that in large number of cases that after receiving the compensation from the State Government, the complainant enters into compromise with the accused for quashing of the proceedings and a petition is filed under Section 482 Criminal Procedure Code, 1973 to quash the proceedings on the basis of compromise arrived at between the parties.

The present case was a classic example where the complainant, being a member of the S.C. community, lodged an FIR against the accused (Hereinafter ‘petitioner’ ) and police after investigating the offence filed charge-sheet. After filing of the charge-sheet, the parties have entered into compromise for quashing of the proceedings. In the meantime, the complainant has been paid Rs.75,000/- as compensation by the State Government.

The Court opined that tax payers money is being misused in this process. It would be appropriate to disburse the compensation only on conviction of the accused and not filing of the FIR and submission of the charge-sheet.

However, coming to the present case grounds for quashing the proceedings was compromise arrived at between the parties. The Court opined that offence against the petitioners were trivial in nature except offence under Section 3(1) (da) and (dha) SC/ST Act. Thus, the Court allowed the petition and quashed the proceedings under Sections 147, 323, 504, 506 IPC, 3(1)(da), 3(1)(dha) of S.C./S.T. Act relying on the judgment of Ramawatar v. State of M.P., 2021 SCC OnLine SC 966.

[Israr v. State of U.P., 2022 SCC OnLine All 518, decided on 26-07-2022]


Advocates who appeared in this case :

Chandra Bhanu Singh, Advocate, Counsel for the Applicant;

G.A.,Seema Upadhyay, Advocate, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: Krishna S Dixit J. quashes the criminal proceedings as the SC-ST act is not retrospective in nature.

The petitioners filed instant petition under Section 482 of Cr.PC 1973 seeking quashment of criminal proceedings as the Court has referred the matter for investigation in exercise of power u/s 156 (3) of the Code.

The Court observed that the offences allegedly been committed years ago i.e., on 18-10-1975 and the complaint was filed with inordinate delay with no plausible explanation for the same and thus ordinarily, the stale claims would not be entertained;

The Court further observed that the alleged acts do not constitute an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is prospective in operation, there being constitutional bar to the retrospectively enacted in Article 20(2); it has been a settled principle of criminal jurisprudence that when the act complained of is not an offence when committed; a free citizen cannot be brought to book merely because such act is criminalized in a subsequent legislation.

The Court thus held “In the above circumstances, this petition succeeds and as a consequence, the FIR No.46/2014 registered by respondent No.1-Police is also set at naught and the proceedings in PCR No.63/2013 are also set aside.”

[Dr Shantha Raj TR v. State, 2022 SCC OnLine Kar 204, decided on 23-02-2022]


Appearances

For petitioners: Mr. Sathish K and Mr. M S Bhagwat

For respondents: Ms. Renukaradhya


Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. dismissed a writ petition which involved the isuue pertaining to regulating the frontier borders of the country, adjoining to the ‘Line of Actual Control’, which adjoins and shares the boundary lines of our neighbouring country, China, which is approximately about 20 to 25 Kms. only away from the land, in dispute, which is proposed to be acquired for the purposes of meeting out the defence need of the ITBPF, i.e. ITBP.

The Court identified the issue as to whether despite of there being certain limited statutory protection; having being granted to a specified class of reserved community, i.e. the Scheduled Tribes, whether their personal rights, if it is, at all prevailing under law, would prevail over the right and interest of the nation, i.e. our Motherland, particularly, when it calls for defending the critical and strategic border of our Nation, in order to have preparedness, to meet any unprecedented insurgencies or army aggression, by the neighbouring county China.

The petitioners who are the residents of the village “Milam”, where the land in dispute is situated and which is proposed to be acquired for defence purposes. The petitioners contended that since they belonged to a Scheduled Tribes i.e. “Bhotia”, which in itself is a class of Tribes protected by the Constitution of India, as well as, under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be called as Act of 2013), their land ought not to have been acquired, even for the purposes of meeting out the requirement of the defence personnel, as because of their self acclaimed immunity, which they have claimed to have vested in them, in the light of the provisions contained under Section 40 to be read with Section 41 of the Act of 2013.

The Court observed that if the purpose of acquisition, which has been shown in the impugned Notification of 1st August, 2015, itself is taken into consideration, it is exclusively intended to meet the emergent need, for the purposes of establishment of the frontier chauki, i.e. Border Out Post (in short BOP), in Village Milam for the 14th Wing of ITBP. The Court was of the view that defence purposes of the country acquires the drivers seat, and would be predominantly overriding all the restrictive intentions of the Act of 2013, since being contrary to the constitutional intention, for protection of individual rights or even for a right of a class of Society, because no individual rights or even for that matter even public rights, can be at any moment be taken to be the superior rights, than to the right of defence of the Country, because of which, we all citizens are thriving peacefully, because our frontiers areas of the Country, are in the safe hands of our gallant army and para military personnels.

The Court further opined that the area of hearing of objections, under the different heads, which had been provided therein under Section 15 of the Act of 2013, will not be attracted or have its applicability, because the purpose herein as expressed in the notification of 08.08.2015, was for establishment of Border Out Post, adjoining to the Line of Actual Control, would not be an aspect, which at all could be left open for speculations and assessment by the executive or administrative authorities, because it could be best and with utmost perfection be only scrutinized by the defence forces authorities, to suit their need of deployment of armed personnel or establishment of their border out posts, which cannot be left open to be assessed by the executive. The Court relied on the judgment of Supreme Court in Citizens for Green Doons v. Union of India, 2021 SCC OnLine SC 1243 where necessity of the defence of the country was considered in detail. The court further discussed plethora of judgments  in relation to the matters of acquisition of land and found that in the present case since there is an imminent threat nor the case has been projected by the petitioners that they would be deprived of an adequate compensation to be made payable to them as per the provisions of the said Act, the aforesaid principles and the safeguards taken by the Supreme Court in the judgements will come to the rescue to the State to apply the theory of ‘eminent domain’ when there is a deprivation of the property, which has been saved by Article 300A of the Constitution of India.

The theory of “eminent domain” grants an exclusive and inherent dominant power with the Government, which is the supreme owner of any land falling within the territory of the Nation, to take over the land and property, though under the terms and conditions of the given set of law, in order to meet out the emergent country requirement, due to any army aggression, army preparedness to face any sudden enemy insurgency, National calamity or other areas of such emergent need of the country and for the country, where time always plays an important pivotal role and where it is exclusively only the need of the country at large, which is to be considered.

Court was of the view that it could only be assumed to a citizen when they are secured when the country’s defence structure and its strength and its preparedness to meet any sudden, military crisis is augmented by providing, its defence personnel or any other such agencies with sufficient infrastructural facilities, and particularly, at the strategic point, like the one, in question, where India is sharing an international border, which is hardly 20 to 25 km. away from the land in question, adjoining to the Line of Actual Control. Since the land is being acquired for the defence needs, this Court was of the view, that irrespective of whatsoever protection has been marginally granted by the Statute, it cannot be compromised under any set of circumstances to mitigate the defence need of the country, and particularly, when as per the ratios dealt with above, the petitioners right as envisaged by Article 300A are still protected.

The writ petition was dismissed.[Heera Singh Pangtey v. State of Uttarakhand, 2022 SCC OnLine Utt 149, decided on 04-03-2022]


Mr T.A. Khan, Senior Advocate, assisted by Mr Ravi Shankar Kandpal, Advocate, for the petitioners.

Mr V.D. Bisen, Brief Holder, for the State of Uttarakhand.

Mr Rakesh Thapliyal, Assistant Solicitor General, assisted by Mr Pankaj Chaturvedi and Mr Lalit Sharma, Standing Counsel, for the Union of India


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of NV Ramana, CJ and Surya Kant* and Hima Kohli, JJ has held that the powers of the Supreme Court under Article 142 can be invoked to quash a criminal proceeding on the basis of a voluntary compromise between the complainant/victim and the accused.

Putting a further caveat, the Court held that the powers under Article 142 or under Section 482 Cr.P.C., are exercisable in post-conviction matters only where an appeal is pending before one or the other Judicial forum.

The Court, however, clarified that the purpose of these extra-ordinary powers is not to incentivise any hollow-hearted agreements between the accused and the victim but to do complete justice by effecting genuine settlement(s).

“This is on the premise that an order of conviction does not attain finality till the accused has exhausted his/her legal remedies and the finality is sub-judice before an appellate court. The pendency of legal proceedings, be that may before the final Court, is sine-qua-non to involve the superior court’s plenary   powers to do complete justice.”

Conversely, where a settlement has ensued post the attainment of all legal remedies, the annulment of proceedings on the basis of a compromise would be impermissible. Such an embargo is necessitated to prevent the accused from gaining an indefinite leverage, for such a settlement/compromise will always be loaded with lurking suspicion about its bona fide.

The Court went on to clarify that even though the powers of this Court under Article 142 are wide and far-reaching, the same cannot be exercised in a vacuum.

“True it is that ordinary statutes or any restrictions contained therein, cannot be constructed as a limitation on the Court’s power to do “complete justice”. However, this is not to say that this Court can altogether ignore the statutory provisions or other express prohibitions in law. In fact, the Court is obligated to take note of the relevant laws and will have to regulate the use of its power and discretion accordingly.”

Court’s power while dealing with offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act), 1989

Ordinarily, when dealing with offences arising out of special statutes such as the SC/ST Act, the Court will be extremely circumspect in its approach. The SC/ST Act has been specifically enacted to deter acts of indignity, humiliation and harassment against members of Scheduled Castes and Scheduled Tribes. The Act is also a recognition of the depressing reality that despite undertaking several measures, the Scheduled Castes/Scheduled Tribes continue to be subjected to various atrocities at the hands of upper-castes.

“The Courts have to be mindful of the fact that the Act has been enacted keeping in view the express constitutional safeguards enumerated in Articles 15, 17 and 21 of the Constitution, with a twin-fold objective of protecting the members of these vulnerable communities as well as to provide relief and rehabilitation to the victims of caste-based atrocities.”

On the other hand, where it appears to the Court that the offence in question, although covered under the SC/ST Act, is

  • primarily private or civil in nature, or
  • where the alleged offence has not been committed on account of the caste of the victim, or
  • where the continuation of the legal proceedings would be an abuse of the process of law,

the Court can exercise its powers to quash the proceedings.

On similar lines, when considering a prayer for quashing on the basis of a compromise/settlement,

“…if the Court is satisfied that the underlying objective of the Act would not be contravened or diminished even if the felony in question goes unpunished, the mere fact that the offence is covered under a ‘special statute’ would not refrain this Court or the High Court, from exercising their respective powers under Article 142 of the Constitution or Section 482 Cr.P.C.”

Ruling on facts

The Court was deciding a civil dispute over the ownership and possessory rights of a piece of land between the Appellant and his neighbour Prembai took an ugly turn when the Appellant allegedly not only threw a brick on the Complainant but also made filthy and slur remarks on her caste. The Appellant was convicted under the unamended Section 3(1)(x) of the SC/ST Act.

The Court held that in such cases, the Courts ought to be even more vigilant to ensure that the complainant-victim has entered into the compromise on the volition of his/her free will and not on account of any duress.

“It cannot be understated that since members of the Scheduled Caste and Scheduled Tribe belong to the weaker sections of our country, they are more prone to acts of coercion, and therefore ought to be accorded a higher level of protection. If the Courts find even a hint of compulsion or force, no relief can be given to the accused party. What factors the Courts should consider, would depend on the facts and circumstances of each case.”

Invoking the powers under Article 142 and quashing the Criminal proceedings with the sole objective of doing complete justice between the parties, the Court recorded the following reasons:

  1. the very purpose behind Section 3(1)(x) of the SC/ST is to deter caste-based insults and intimidations when they are used with the intention of demeaning a victim on account of he/she belonging to the Scheduled Caste/Scheduled Tribe community. The case of the Appellant, from the very beginning, has been that the alleged abuses were uttered solely on account of frustration and anger over the pending dispute. Thus, the genesis of the deprecated incident was the civil/property dispute. Considering this aspect, it would not be incorrect to categorise the occurrence as one being overarchingly private in nature, having only subtle undertones of criminality, even though the provisions of a special statute have been attracted in the present case.
  2. the offence in question, for which the Appellant has been convicted, does not appear to exhibit his mental depravity. The aim of the SC/ST Act is to protect members of the downtrodden classes from atrocious acts of the upper strata of the society. Although the Appellant may not belong to the same caste as the Complainant, he too belongs to the relatively weaker/backward section of the society and is certainly not in any better economic or social position when compared to the victim. Despite the rampant prevalence of segregation in Indian villages whereby members of the Scheduled Caste and Scheduled Tribe community are forced to restrict their quartes only to certain areas, it is seen that in the present case, the Appellant and the Complainant lived in adjoining houses. Therefore, the overriding objective of the SC/ST Act would not be overwhelmed if the present proceedings are quashed.
  3. the incident occurred way back in the year 1994. Nothing on record indicates that either before or after the purported compromise, any untoward incident had transpired between the parties.
  4. the Complainant has, on her own free will, without any compulsion, entered into a compromise and wishes to drop the present criminal proceedings against the accused.
  5. given the nature of the offence, it is immaterial that the trial against the Appellant had been concluded.
  6. the Appellant and the Complainant parties are residents of the same village and live in very close proximity to each other. The parties themselves have voluntarily settled their differences.

Therefore, in order to avoid the revival of healed wounds, and to advance peace and harmony, the Court found it prudent to effectuate the present settlement.

[Ramawatar v. State of Madhya Pradesh, 2021 SCC OnLine SC 966, decided on 25.10.2021]


*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant

Case BriefsSupreme Court (Constitution Benches)

“The aspiration of equal treatment of the lowest strata, to whom the fruits of the reservation have not effectively reached, remains a dream. At the same time, various castes by and large remain where they were, and they remain unequals, are they destined to carry their backwardness till eternity?”

Supreme Court: 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 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has referred the matter to a larger bench.

While doing so, the Court observed:

“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. “

The 5-judge bench in EV Chinnaiah judgment had held that the Scheduled Castes form homogenous classes and there cannot be any sub¬division. On the application of the Indira Sawhney judgement, the bench said,

We do not think the principles laid down in Indra Sawhney case, 1992 Suppl. (3) SCC 217, for subclassification of Other Backward Classes can be applied as a precedent law for subclassification or subgrouping Scheduled Castes in the Presidential List because that very judgment itself ha specifically held that subdivision of Other Backward Classes is not applicable to Scheduled Caste and Scheduled Tribes. This we think is for the obvious reason i.e. the Constitution itself has kept the Scheduled Castes and Scheduled Tribes List out of interference by the State Governments.”

In Indra Sawhney judgment, within those identified as backward classes, exclusion had been permitted to those who are socially and educationally advanced.

KEY HIGHLIGHTS OF THE OBSERVATIONS MADE BY THE COURT WHILE REFERRING THE MATTER TO A LARGER BENCH:

On insertion of Article 324A inserted by the Constitution (One Hundred and Second Amendment) Act, 2018, w.e.f. 14.8.2018

Article 342A’s provisions are pari materia to Articles 341 and 342 dealing with Scheduled Castes and Scheduled Tribes. Under Article 342A  the President is empowered to issue public notification with respect to socially, and educationally backward classes which shall for the Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory and the Parliament may by law has the power to include in or exclude from the Central list of socially and educationally backward class. The power of variation can be exercised only once.

The provisions of Article 16(4) and Article 342A indicate that it would not be permissible to adopt different criteria for Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. The authoritative pronouncement is required with respect to the effect of   aforesaid   provisions of the Constitution and whether subclassification is permissible only with respect to the socially and 59 educationally backward classes covered under Article 342A read with Article   366(26C) and not with respect to Scheduled Castes and Scheduled Tribes covered under similar provisions, i.e., under Articles 341 and 342 read with Article 366(24) and 366(25) respectively.  The question of immense public importance arises in view of the insertion of Article 342A.

On whether sub­-classification amounts to exclusion under Article 341(2)

All the castes included in the list of Scheduled Caste are given the benefit of reservation as per representation in service, but only specific percentage fixed for preferential treatment to a caste/class which was not able to enjoy the benefit of reservation on account of their being more backward within the backward classes of Scheduled Castes. The preferential treatment would not tantamount to excluding other classes as total deprivation caused to any of the castes in the list of Scheduled Caste under Article 341(2). Caste is nothing but a class. It is the case of classification to provide benefit to all and to those deprived of the benefit of reservation, being the poorest of the poor.

“Whether the action based on intelligible differentia to trickle down the benefit can be said to be violative of Articles 14 and 16 of the Constitution and whether sub-classification can be said to be an act of inclusion or exclusion particularly when various reports indicating  that there is inequality inter se various castes included within the list of Scheduled Castes.”

On the change in socio-economic status of some castes

Constitution aims at the comprehensive removal of the disparities. The very purpose of providing reservation is to take care of disparities. The Constitution takes care of inequalities. There are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. Various reports indicate that Scheduled Castes and Scheduled Tribes do not constitute a homogenous group.

“The interpretation of Articles 14, 15, 16, 338, 341, 342, and 342A is a matter of immense public importance, and correct interpretation of binding precedents in Indra Sawhney and other decisions. Though we have full respect for the principle of stare decisis, at the same time, the Court cannot be a silent spectator and shut eyes to stark realities. The constitutional goal of social transformation cannot be achieved without taking into account changing social realities.”

The caste or group or sub¬group continued exactly as before in the list. It is only those persons   within that group or sub¬group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.

“The million-dollar question is how to trickle down the benefit to the bottom rung; reports indicate that benefit is being usurped by those castes (class) who have come up and adequately represented. It is clear that caste, occupation, and poverty are interwoven.  The State cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures.”

When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making sub¬classification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided. It involves redistribution and reallocation of resources and opportunities and equitable access to all public and social goods to fulfil the very purpose of the constitutional mandate of equal justice to all.

“In case benefit which is meant for the emancipation of all the castes, included in the list of Scheduled Castes, is permitted to be usurped by few castes those who are adequately represented, have advanced and belonged to the creamy layer, then it would tantamount to creating inequality whereas in case of hunger every person is required to be fed and provided bread.  The entire basket of fruits cannot be given to mighty at the cost of others under the guise of forming a homogenous class.“

[State of Punjab v. Davinder Singh, 2020 SCC OnLine SC 677, decided on 27.08.2020]

Legislation UpdatesNotifications

An Act further to amend the Constitution (Scheduled Tribes) Order, 1950 to modify the list of the Scheduled Tribes in the State of Karnataka.

BE it enacted by Parliament in the Seventy-first Year of the Republic of India as follows:—

1. This Act may be called the Constitution (Scheduled Tribes) Order (Amendment) Act, 2020.

2. In the Constitution (Scheduled Tribes) Order, 1950, in the Schedule, in Part VI. — Karnataka,—

(a) in entry 38, for the words “Naikda, Nayaka”, the words and brackets “Naikda, Nayaka (including Parivara and Talawara)” shall be substituted;

(b) in entry 50, for the brackets and words “(in Uttar Kannada district)”, the brackets and words “(in Belagavi, Dharwad and Uttar Kannada districts)” shall be substituted.


Ministry of Law and Justice

[Notification dt. 19-03-2020]

Legislation UpdatesStatutes/Bills/Ordinances

The Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019

No. 13 of 2019

Promulgated by the President in the Seventieth Year of the Republic of India.

An Ordinance to provide for the reservation of posts in appointments by direct recruitment of persons belonging to the Scheduled Castes, the Scheduled Tribes and the socially and educationally backward classes, to teachers’ cadre in certain Central Educational Institutions established, maintained or aided by the Central Government, and for matters connected therewith or incidental thereto.

Whereas Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action;

NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:-

  1. (1) This Ordinance may be called the Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019.

         (2) It shall come into force at once.

     2. In this Ordinance, unless the context otherwise requires,—

        (a) “appropriate authority” means the University Grants Commission established under the University Grants Commission Act, 1956, or any other authority or body established by or under a Central Act for the determination, coordination or maintenance of the standards of higher education in any Central Educational Institution;

(b) “branch of study” means a branch of study leading to three principal levels of qualifications at bachelors (under graduate), masters (post graduate) and doctoral levels;

(c) “Central Educational Institution” means—

    (i) a university established or incorporated by or under a Central Act;

   (ii) an institution of national importance established by an Act of Parliament;

  (iii) an institution, declared as an institution deemed to be University under Section 3 of the University Grants Commission Act, 1956, and maintained by or receiving aid from the Central Government;

  (iv) an institution maintained by or receiving aid from the Central Government, whether directly or indirectly, and affiliated to an institution referred to in sub-clause (i) or sub-clause (ii), or a constituent unit of an institution referred to in sub-clause (iii); and

 (v) an educational institution established by the Central Government under the Societies Registration Act, 1860;

(d) “direct recruitment” means the process of appointing faculty by inviting applications against public advertisement from persons eligible to teach in a Central Educational Institution;

(e)“faculty” means the faculty of a Central Educational Institution;

(f) “Minority Educational Institution” means an institution established and administered by the minorities under clause (1) of Article 30 of the Constitution and so declared by an Act of Parliament or by the Central Government or declared as a Minority Educational Institution under the National Commission for Minority Educational Institutions Act, 2004;

(g) “sanctioned strength” means the number of posts in teachers’ cadre approved by the appropriate authority;

(h) “Scheduled Castes” means the Scheduled Castes notified under Article 341 of the Constitution;

(i) “Scheduled Tribes” means the Scheduled Tribes notified under Article 342 of the Constitution;

(j) “socially and educationally backward classes” means such backward classes as are so deemed under Article 342 A of the Constitution;

(k) “teachers’ cadre” means a class of all teachers of a Central Educational Institution, regardless of the branch of study or faculty, who are remunerated at the same grade of pay, excluding any allowance or bonus.

Please follow the link for detailed notification: Notification

Ministry of Law and Justice

Case BriefsHigh Courts

Madhya Pradesh High Court: In the instant writ petition, wherein it was prayed that the use of nomenclature ‘Dalit’ be prohibited in government/non government organizations, while making of penal provisions and within public at large as well, the Division Bench of Sanjay Yadav and Ashok Kumar Joshi, JJ., observed that they have no doubt that the Central Government/State Government and their functionaries would refrain from using the nomenclature ‘Dalit’ for the members of scheduled castes and schedules tribes, as the same not does not find mention in the Constitution of India or any other statute.

The Bench also examined that the petitioner had sought more time more time to file documents, correspondence, rules or regulations entered into and/or issued by the Central Government or State Government using ‘Dalit’ to depict the members belonging to Scheduled Castes and Scheduled Tribes, however despite providing multiple opportunities, the petitioner failed to bring on record any document issued by the functionaries of Central Government/State Government to use ‘Dalit’ as interchangeable with “Scheduled Castes/Scheduled Tribes”. Concluding with the aforementioned observation, the Court disposed off the petition. [Dr. Mohanlal Mahor v. Union of India, 2018 SCC OnLine MP 36, decided on 15.01.2018]

Case BriefsSupreme Court

Supreme Court: In a petition highlighting the plight of the members of Scheduled Castes and Scheduled Tribes, the Court noticed that there has been a failure in complying with the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities.

Stating the legislative intent behind the enactment of the Act, the Court noted that  Parliament acknowledged that the Scheduled Castes and Scheduled Tribes were subject to various offences, indignities, humiliations and harassments perpetually. Numerous incidents of brutalities and atrocities depriving the Scheduled Castes and Scheduled Tribes of their life and property were a cause of concern for Parliament.

Regarding the contention of the Union of India that the State Governments are responsible for carrying out the provisions of the Act, the Court said that the Central Government also has an important role to play in ensuring the compliance of the provisions of the Act. Section 21(4) of the Act provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before  Parliament every year. The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected.

The 3-Judge Bench of T.S. Thkur, CJ and Dr. D.Y. Chandrachud and L. Nageswararao, JJ directed the Central Government and State Governments to strictly enforce the provisions of the Act and also directed the National Commissions to discharge their duties to protect the Scheduled Castes and Scheduled Tribes. The Court also asked the National Legal Services Authority to formulate appropriate schemes to spread awareness and provide free legal aid to members of the Scheduled Castes and Scheduled Tribes. [National Campaign on Dalit Human Rights v. Union of India, 2016 SCC OnLine SC 1488, decided on 15.12.2016]