By Shri Y.SRINIVASA RAO, Prl. Senior Civil Judge, Tirupati.
Introduction:- The Indian Constitution was adopted by the Indian Constituent Assembly on 26 November 1949 and it came into force since 26 January 1950. It contains several provisions that protect the rights of the citizens of India. To say in short about the back ground, most of the Indian subcontinent was under the British rule from 1857 to 1947. In 1956, abolition of states according to classes and the introduction of Union Territories and reorganisation of states by
language was one of the significant factors. In 1976, under 42nd Amendment, Secularism and socialism were inserted to restore the faith of the nation. The primary reason to add ”socialism” was to promote social as well as economic equality in the country. In 1978, Right to Property was deleted from the list of fundamental rights. In 1985, Under the amendment, a Member of Parliament or state legislature was considered to have defected if they either on their own resigned from their party or violated the directions of the party leadership on a vote. In 1989, the voting age limited was reduced from 21 to 18. In 1993, an immediate need to introduce effective authorities to execute the numerous schemes and programs was felt by the government and therefore Municipalities and Nagarpaliks were introduced. In 2002, free and compulsory education to children between 6 to 14 years was introduced. Under this provision, private schools to take 25% of their class strength from economically weaker or disadvantaged groups of society through a random selection process with the help of the government funding. This initiative was taken to try and provide elementary education to all. In 2014, it was allowed the government to pass laws relating to reservations to socially, economically backward classes, scheduled castes and scheduled tribes in public and private higher educational institutions. In 2016, GST was introduced. Under this amendment, the Goods and Services Tax (GST), to present the idea of One Nation, One Tax was introduced.
Enactments passed before Indian Constitution:- To say in short about the enactments that were passed before Indian Constitution was come into force are as follows:-Regulating Act of 1773 (to regulate the affairs of the East India Company in India); Pitt’s India Act of 1784 ( as to the commercial and political functions of the company); Charter Act of 1833 (commercial activities of East India Company were put an end to); Charter Act of 1853 (Civil services were made accessible to the Indians ); Government of India Act of 1858 (powers completely came to be vested with the British Crown); Indian Councils Act of 1861 (Viceroy was given powers to make rules for transaction of business in the council and to issue ordinances ); Indian Councils Act of 1892 (number of non official members was increased in both the central and provincial legislative councils ); Indian Councils Act of 1909 (Morley-Minto reforms :- (Separate electorate was given to Muslims; Indian Satyendra Prasad Sinha was included in the Viceroy’s executive council for the first time); Government of India Act, 1919 (Montagu-Chelmsford Reforms :- (Legislative Council was bifurcated into the upper house (Council of state) and Lower house (Legislative Assembly) ); Government of India Act of 1935 (powers between centre and states were divided in terms of Federal list, Provincial list and Concurrent list ); Indian Independence Act of 1947 (Ended the British rule and declared India to be Independent from 15th August 1947)
Basic structure of the Indian Constitution:- This doctrine applies to Constitutional amendments. Parliament has no power to alter the basic structure of the Indian Constitution.
Constitutional Issues:- In 1951, in the case State of Madras Vs. Smt.
Champakam Dorairanjan, the Hon’ble Supreme Court of India held that caste based reservations as per Communal Award violates Article 15(1). Yet, First constitutional amendment as to Art. 15 (4) was brought forward. In consequence of this Amendment, the ruling of Supreme Court was made invalid.
The Hon’ble Hegde, J in A. Peeriakaruppan, etc. v. State of Tamil Nadu has observed:”A caste has always been recognised as a class.”. The Hon’ble Vaidialingam, J in State of Andhra Pradesh and Ors. v. U.S.V. Balram etc. in his conclusion upheld the list of ” Backward Class in that case as they satisfied the various tests, which have been laid down by this Court for ascertaining the social and educational backwardness of a class even though the said list was exclusively based on caste.”. The Hon’ble Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. was of the view that ‘ ‘In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test….”
In 1963, M R Balaji v Mysore , the Hon’ble Court has put 50% limit on reservations in this ruling. Almost all states did not exceed 50% limit but State of Rajastan(68% quota including 14% for forward castes, post gujjar violence 2008) and State of Tamil Nadu, in 1980, (69%, Under 9th schedule) exceeded the limit. Despite the State of Andhra Pradesh tried to exceed the limit in 2005, it was stopped running by the High Court. In 1992,The Supreme court of India in Indira Sawhney & Ors v. Union of India, upheld Implementation of separate reservation for ”Other Backward Classes” as to central government jobs are concerned. This ruling was implemented. In General Manager, S. Rly. v. Rangachari, State of Punjab v. Hiralal, Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India it was held that Reservation of appointments or posts under Article 16(4) included promotions. This was overruled in Indira Sawhney & Ors v. Union of India. : and held that Reservations cannot be applied in promotions. Union of India Vs Varpal Singh, Ajitsingh Januja & Ors Vs State of Punjab, Ajitsingh Januja & Ors Vs State of Punjab & Ors, M.G.Badappanavar Vs State of Karnataka.; – Ashok Kumar Gupta: Vidyasagar Gupta Vs State of Uttar Pradesh, In this case, it was observed that ” It would thus be clear that right to promotion is a statutory right. It is not a fundamental right. The right to promotion to a post or a class of posts depends upon the operation of the conditions of service. Article 16 (4A) read with Articles 16 (1) and 14 guarantees a right to promotion to Dalits and Tribes as fundamental right where they not have adequate representation consistently with the efficiency in administration. The Mandal’s case, has prospectively overruled the ratio in Rangachari’s case, i.e., directed the decision to be operative after 5 years from the date of the judgment; however, before expiry. thereof, Article 16 (4A) has come into force from June 17, 1995. Therefore, the right to promotion continues as a constitutionally guaranteed fundamental right”. ” it is also appropriate to see that ”In GENERAL MANAGER, S.RLY. vs. RANGACHARI [AIR 1962 SC 36], STATE OF PUNJAB vs. HIRALAL [(1970) 3 SCC 567], AKHIL BHARATIYA SOHIT KARAMCHARI SANGH (RAILWAY) vs. UNION OF INDIA [(1981) 1 SCC 246], it was held that ‘reservation of appointments or posts under Article 16(4) included promotions and this was overruled in the Indra Sawheny’s case (supra) and held that reservations cannot be applied in promotions. 77th Constitution amendment, introducing Articles 16(4 A) and (16 4B) was effected to make this part of the judgement of Indra Sawheny’s case as invalid. Thereafter, in NAGRAJ AND OTHERS vs. UNION OF INDIA AND OTHERS [AIR 2007 SC 71], the Honourable Apex Court has upheld this Constitutional Amendment.[this was observed in Dr.E.Sayed Ali vs Union Of India on 24 October, 2008]” Yet, it is here also seen that 77th
Constitution amendment [Art 16 4 A & 16 4B] was introduced to make judgment invalid. M. Nagraj & Ors v. Union of India and Ors. held the amendments are constitutional. See also R K Sabharwal Vs St of Punjab. In Union of India Vs Varpal Singhand Ajitsingh Januja & Ors Vs State of Punjab it was held that a roster point promotees getting the benefit of accelerated promotion would not get consequential seniority and the seniority between the reserved category candidates and general candidates in promoted category shall be governed by their panel position. However, this was overruled in Jagdish Lal’s case , in this ruling , it was held that the date of continuous officiation has to be taken into account and if so, the roster- point promotees were entitled to the benefit of continuous officiation. Later, Ajitsingh Januja & Ors Vs State of Punjab & Ors overruled Jagdish Lal M G Badappanvar Vs St of Karnataka : and it was held that ”Roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and therefore, such roster promotions did not confer consequential seniority to the roster point promotee”.
S. Vinodkumar Vs. Union of India in this case, while considering Articles 16(4) and 335 held that for the purpose of promotion lower qualifying marks for the reserved category candidates were not permissible. Further, it was held that relaxation of qualifying marks and standard of evaluation in matters of reservation in promotion were not permissible.; in consequence of this, a proviso, in the Constitution (82nd) Amendment Act was inserted at the end of Art 335.
M. Nagraj & Ors v. Union of India and Ors. held the amendments constitutional and that In M. Nagraj anOrs. v. Union of India and Ors. , the Supreme Court held that it is the duty of the State not only to protect human dignity but facilitate it by taking positive steps in that direction.
In I.R. Coelho (Dead) by LRS. Vs. State of Tamil Nadu, the Hon’ble Court held as infra: ” This is our answer to the question referred to us
vide Order dated 14th September, 1999 in I.R. Coelho v. State of Tamil Nadu [(1999) 7 SCC 580].(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.(vi) Action taken and transactions finalized as a result of the impugned Acts
shall not be open to challenge.”
State of Tamilnadu was advised by the Supreme court of India to follow 50% limit.; It is also pertinent to note that State of Tamilnadu Reservations were put under 9th Schedule of the constitution of India.
In Unni Krishnan, J.P. & Ors. Vs. State of Andhra Pradesh & Ors. ,Held:Every child/citizen has a right to free education up to the age of 14 years and thereafter it is subject to limits of economic capacity and development of the State-State obliged to follow directions contained in Article 45-Article 21to be construed in the light of Articles 41, 45 and 46. It was also observed that right to establish educational institutions can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). This was overruled in T.M.A.Pai Foundation v. State of Karnataka, In this ruling, it was observed that the right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right will be subject to the provisions of Articles 19(6)
and 26(a). However, minority institutions will have a right to admit students belonging to the minority group…”. P.A.Inamdar v. State of Maharashtra Supreme court held that reservations cannot be enforced on Private Unaided educational institutions.; In view of this, 93rd constitutional amendment introduced Art 15(5).
Ashoka Kumar Thakur vs. Union of India: (Writ Petition (civil) 265 of 2006;DATE OF JUDGMENT: 10/04/2008)
− SUMMARY OF FINDINGS
1A. Whether the creamy layer be excluded from the 93rd
Amendment (Reservation Act)?
Yes, it must. The 93rd amendment would be ultra vires and invalid if the creamy layer is not excluded. See paras 22, 25, 27, 30, 34, 35, 43, 44.
1B. What are the parameters for creamy layer exclusion?
For a valid method of creamy layer exclusion, the Government may use its post-Sawhney I criteria as a template. (See: Office Memorandum dated 8-9-1993, para 2(c)/Column 3). I urge the Government to periodically revise the O.M. So that changing circumstances can be taken into consideration while keeping our constitutional goal in view. I further urge the Government to exclude the children of former and present Members of the Parliament and Members of Legislative Assemblies and the said O.M. be amended accordingly.See paras 55-57.
1C. Is creamy layer exclusion applicable to SC/ST?
In Indra Sawhney-I, creamy layer exclusion was only in regard to OBC. Justice Reddy speaking for the majority at para 792 stated that “this discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes”. Similarly, in the instant case, the entire discussion was confined only to Other Backward Classes. Therefore, I express no opinion with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes. See para 34.
- Can the Fundamental Right under Article 21A be accomplished without great emphasis on primary education?
No, it cannot. An inversion in priorities between higher and primary/secondary education would make compliance with Article 21A extremely difficult. It is not suggested that higher education needs no encouragement or that higher education should not receive more funds, but there has to be much greater emphasis on primary education. Our priorities have to be changed. Nothing is really more important than to ensure total compliance of Article 21A. Total compliance means good quality education is imparted and all children aged six to fourteen regularly attend schools. I urge the Government to implement the following: The current patchwork of laws on compulsory education is insufficient. Monetary fines do not go far enough to ensure that Article 21A is implemented. The Central Government should enact legislation that: (a) provides low-income parents/guardians with financial incentives such that they may afford to send their children to schools; (b) criminally penalizes those who receive financial incentives and despite such payment send their children to work; (c) penalizes employers who preclude children from attending schools; (d) the penalty should include imprisonment; the aforementioned Bill would serve as an example. The State is obligated under Article 21A to implement free and compulsory education in toto. (e) until we have accomplished for children from six to fourteen years the object of free and compulsory education, the Government should continue to increase the education budget and make earnest efforts to ensure that children go to schools and receive quality education; (f) The Parliament should fix a deadline by which time free and compulsory education will have reached every child. This must be done within six months, as the right to free and compulsory education is perhaps the most important of all the fundamental rights. For without education, it becomes extremely difficult to exercise other fundamental rights.See paras 126-131.
- Does the 93rd Amendment violate the Basic Structure of the Constitution by imposing reservation on unaided institutions?
Yes, it does. Imposing reservation on unaided institutions violates the Basic Structure by stripping citizens of their fundamental right under Article 19(1)(g) to carry on an occupation. T.M.A. Pai and Inamdar affirmed that the establishment and running of an educational institution falls under the right to an occupation. The right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution. Reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution. The effect of the 93rd Amendment is such that Article 19 is abrogated, leaving the Basic Structure altered. To restore the Basic Structure, I sever the 93rd Amendment’s reference to “unaided” institutions. See paras 132-182.
- Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society, in violation of Secularism.
Sawhney I compels me to conclude that use of caste is valid. It is said that if reservation in education is to stay, it should adhere to a basic tenet of Secularism: it should not take caste into account. As long as caste is a criterion, we will never achieve a casteless society. Exclusively economic criteria should be used. I urge the Government that for a period of ten years caste and other factors such as occupation/income/property holdings or similar measures of economic power may be taken into consideration and thereafter only economic criteria should prevail; otherwise we would not be able to achieve our constitutional goal of casteless and classless India.See paras 194, 195, 231, 248, 251.
- Are Articles 15(4)and15(5) mutually contradictory,such that15(5)is unconstitutional?
I am able to read them harmoniously.See paras 252-256.
- Does Article 15(5)’s exemption of minority institutions from the purview of reservation violate Article 14 of the Constitution?
Given the inherent tension between Articles 29(2) and 30(1), I find that the overriding constitutional goal of realizing a casteless/classless society should serve as a tie-breaker. We will take a step in the wrong direction if minority institutions (even those that are aided) are subject to reservation. See paras 268-269. 7) Are the standards of review laid down by the U.S. Supreme Court applicable to our review of affirmative action under Art 15(5) and similar provisions?
The principles enunciated by the American Supreme Court, such as, “Suspect Legislation” “Narrow Tailoring” “Strict Scrutiny” and “Compelling State necessity” are not strictly applicable for challenging the impugned legislation. Cases decided by other countries are not binding but do have great persuasive value. Let the path to our constitutional goals be enlightened by experience, learning, knowledge and wisdom from any quarter. In the words of Rigveda, let noble thoughts come to us from every side.See para 183.
8) With respect to OBC identification, was the Reservation Act’s delegation of power to the Union Government excessive?
It is not an excessive delegation. With respect to this issue, I agree with the reasoning of the Chief Justice in his judgment.
9) Is the impugned legislation invalid as it fails to set a time-limit for caste-based reservation?
It is not invalid because it fails to set a time-limit. See para 272.
10) At what point is a student no longer Educationally Backward and thus no longer eligible for special provisions under 15(5)?
Once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter. See para 273.
- Would it be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks that are slightly lower than that of the general category?
It is reasonable to balance reservation with other societal interests. To maintain standards of excellence, cut off marks for OBCs should be set not more than 10 marks out of 100 below that of the general category.See paras 274-278.
− Venkataramana Vs State of Madras,AIR 1951 SC 229, in this case, it was t held that “reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional”.
− General Manager, S. Rly v. Rangachari AIR 1962 SC 36 , in this case, the majority decision of the Supreme Court held that the power of reservation which is conferred on the State under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments, but also by providing for reservation of selection posts.
− M R Balaji v. State of Mysore AIR 1963 SC 649, in this case, it was held that the backwardness under Article 15 (4) must be social and educational. In M.R. Balaji v. State of Mysore 1963 (Suppl.) 1 SCR 439 at page 454 The Hon’ble Gajendragadkar. J observed that “economic backwardness might have contributed to social backwardness….” This observation tends to show that Gajendragadkar, J was of the view that economic backwardness may contribute to social backwardness. With respect to the learned Judge, I am unable to agree with his view.
− Chitralekha Vs State of Mysore,AIR 1964 SC 1823, The order of Govt making a classification of socially and educationally backward classes based on economic condition only was held to
− T. Devadasan v Union AIR 1964 SC 179. (It is to be noted that in Balaji’s case (AIR 1963 SC 649] and Devdasan’s case (1964) 4 SCR 680; (AIR 1964 SC 179) ‘the carry forward’ rule for backward classes far exceeded 50% and was struck down.)
− Jacob Mathew Vs State of Kerala, AIR 1964 Kerala 39, it was held that the classification of socially and educationally beackward classes based on the test of caste,community or religion was
inconsistent with the requirements of Article 15 (4).
− Miss Laila Chacko Vs State of Kerala, AIR 1967 Kerala 124, the Hon’ble High Court held that while accepting the means cum caste test for classification of backward classes several factors hav e to be taken into consideration. Classification on the basis of the test
of income was rejected.
− Chamaraja v Mysore AIR 1967 Mys 21 , it was observed that ”the guarantee given under Article 29(2) of the Constitution is a guarantee given to individual citizens. That guarantee is not given to any class. Article 15(4) of the Constitution empowers the State to make special provisions for the advancement of any Socially and Educationally Backward Class of citizens or for the Schedule Castes and Schedule Tribes. That Article does not compel the State Government to make any special provision for the advancement of the Classes, Castes, tribes mentioned therein. The State is empowered to make provisions in that regard. But it is not compelled to do so…”
− P. Rajendran Vs. State of Madras AIR 1968 SC 1012, In this case, the Hon’ble Supreme Court justified reservation of seats made caste wise.
− P.Sagar Vs State of AP, AIR 1968 AP 165, In this case, it was observed that Poverty, Caste, Place of habitation, Inferiority of occupation, low standard of education ,low standard of living are considerations for backwardness.
− Periakaruppan Vs State of Tamil Nadu, in this case, the Court held that a classification of the backward classes on the basis of caste is within the permissible limits of Article 15(4), if it is shown to be
socially and educationallu backward.
− State of A.P. Vs U.S.V. Balram AIR 1972 SC 1372, In this ruling, following Rajendran and Periakaruppan cases, held that ‘ if a caste as whole was socially and educationally backward, the reservation made of such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average”.
− Kesavanand Bharti v State of Kerala: It is a landmark ruling of our Supreme Court. The Hon’ble Chief Justice Sri Sarv Mittra Sikri held that ”the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. Further held that ”fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest.” It was also observed that the expression “amendment of this Constitution”, in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution.” (See the ruling to know more)
− K.S.Jayasree Vs. State of Kerala AIR 1976 SC 2381 , The Hon’ble Supreme Court observed that in ascertaining the social backwardness of the class of citizens it might not be irrelevant to consider the caste of the group of citizens.
− Minerva Mills Ltd Vs Union (1980) 3 SCC 625 : AIR 1980 SC 1789, In this case, it was observed as : ” I would therefore declare Section 55 of the Constitution (Forty-second Amendment) Act, 1976 which inserted Sub-sections (4) and (5) in Article 368 as unconstitutional and void on the ground that it damages the basic structure of the Constitution and goes beyond the amending power of Parliament. But so far as Section 4 of the Constitution (Forty- second Amendment) Act, 1976 is concerned, I hold that, on the interpretation placed on the amended Article 31C by me, it does not damage or destroy the basic structure of the Constitution and is within the amending power of Parliament and I would therefore declare the amended Article 31C to be constitutional and valid. ”
− Akhil Bharatiya Soshit Karamchari Sangh Vs Union (1981) 1 SCC 246 , In this ruling, it was observed as under:: These forces nurtured the roots of our constitutional values among which must be found the fighting faith in a casteless society, not by obliterating the label but by advancement of the backward..”
− K. C. Vasant Kumar v. Karnataka, AIR 1985 SC 1495, in this ruling, the Court opines that the test of economic backwardness was the only criterion that can be realistically devised to determine social and educational backwardness. The Hon’ble Sri Chief Justice Chandrachud, further added that ” in regard to Schedule castes and Schedule Tribes (SCs & STs), the existing reservations should be continued without the application of means test upto 2000AD The Hon’ble Chinnappa Reddy, J in Vasanth Kumar points out that the social investigator “…may freely perceive those pursuing certain ‘lowly’ occupation as socially and educationally backward classes.
− Indira Sawhney & Ors v. Union of India AIR 1993 SC 477, the question that who are the other backward classes came up for consideration again in this case. Four distinct sets of views are discernible from this ruling. The Hon’ble Sri Justice Jeevan Reddy, held that reservation contemplated under Article 16(4) should not normally exceed 50%. However, certain extraordinary situations inherent in the great diversity of this country and people warrant the state to exceed 50%. ( To know more, see this ruling).
− Unni Krishnan v. State of A.P. and Ors. (1993 (1) SCC 645), Held:Every child/citizen has a tight to free education up to the age of 14 years and thereafter it is subject to limits of economic capacity and development of the State-State obliged to follow directions contained in Article 45-Article 21 to be construed in the light of Articles 41, 45 and 46. − R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745, In this case,the Supreme Court observed: “When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward Class. The fact that considerable number of members of a Backward Class have beenappointed/promoted against general seats in the State Services may be a relevantfactor for the State Government to review the question of continuing reservationfor the said class but so long as theinstructions/rules providing certain percentage of reservations for the Backward Classes areoperative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general
− Indira Sawhney Vs. Union of India. AIR 2000 SC 498,” it was clearly held that the doctrine of principles of reservations have to be applied having regard to the vacancy position as existing in the entire area, the only exception being the cases,which would be falling under Article 16(4)” .
− NTR University of Health Science Vijaywada v. G Babu Rajendra Prasad (2003) 5 SCC 350, In this case also, it was observed that ”In Indra Sawhney (supra) it has been clearly held that the doctrine of principles of reservations have to be applied having regard to the vacancy position as existing in the entire area, the only exception being the cases,which would be falling under Article 16(4)”.
Filling up of Judges vacancies :- Now, it is important to go through an important ruling of Hon’ble High Court of Judicature at Hyderabad, in Sarasani Satyam Reddy Vs. Union of India, rep, by its Secretary, Law & Justice, New Delhi and others – 2017 (3) ALT 468 ( D.B. ) where in it was held as follows:- ‘The appointment of Judges, which is to take place through a “participative consultative process” involving 4 partners namely (i) the collegium of the high court (ii) the State (iii) the collegium of the Supreme Court and (iv) the Union of India, in view of its special angularities, is prone to be time consuming. Two out of these 4 partners belong to the same family and the head of that family has gone on record, not on the administrative side, but on the judicial side, that a rigorous process is in progress. Therefore, we are bound to give credence to what was recorded by a Three Member Bench of the Supreme Court presided over by the HonRs.ble the Chief Justice of India in Ashwini Kumar Upadhyay, not on account of any diffidence, servility or subordination and certainly not on the ground of lack of jurisdiction or maintainability, but on account of the faith that a member of the same family/fraternity should repose in the other members, especially the head of the same system/family. If a member of the judicial fraternity himself does not repose faith and trust in what is recorded in an order of the highest court of the land, we do not know who else will do so. After all, this is not an adversarial litigation and we are conscious of our constitutional responsibilities. Assuming that we entertain the writ petition and issue notice to the respondents, we do not think any of them is going to come and file a counter contending that the reliefs prayed for are not to be granted. The respondents may simply place an assurance to complete the process in a time frame. This assurance is already found in the order of the Supreme Court and hence there is no necessity to entertain the writ petition.’
Conclusion:- In 2019, the Hon’ble Apex Court held that A higher constitutional objective underlies Article 243-C of the Constitution, which provides for persons being chosen freely by direct election to occupy posts in a Gram Panchayat. Speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. (See. Hussain and another Vs. Union of India – 2017 (4) ALT(D.N.)(SC) 2 ( D.B. )).
Articles 48, 48-A and 51-A Directive principles The Directive principles of State policy, and the fundamental duties as enshrined in Article 51-A of the Constitution, play a significant role in testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition Fundamental duties, though not enforceable by the Writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues as was held in Bathula Krishna Vs. State of Andhra Pradesh rep. by its Principal Secretary, Industries and Commerce (Mines), Velagapudi, Amaravathi and others – 2019 (1) ALT 179 ( D.B. ).