SUBHASH CHANDRA & ANR. I v. DELHI SUBORDINATE SERVICES SELECTION BOARD & ORS.

A purpose and not for another purpose.

43Copy pinpoint43. The law relating to affirmative action and protective discrimination by way of reservation of posts for the members of the Scheduled Castes invoking Clause (4) of Article 16 of the Constitution of India is reflected by constitutionalism, i.e., the provisions of the Constitution of India read with the executive instructions issued by the National Capital Territory of Delhi in this behalf which has the force of law in terms whereof only the classes of persons who would be entitled thereto were determined. By judicial process or otherwise, the said executive instructions which are consistent with the constitutional scheme could not have brought about an altogether different situation as a result whereof those who are residents of Delhi being belonging to the members of the Scheduled Castes and, thus, entitled to be regarded within the framework of the quota provided for by the Government could not have been deprived therefrom by way of bringing in another class of persons within the purview of the said category of Scheduled Castes who are not entitled to the said benefit. By reason of such an Act, those who are entitled to the benefit of the doctrine of protective .. E discrimination contained in Clause (4) of Article 16 of the Constitution of India had been deprived of their constitutional right. Once it is found that the constitutional violation of this ". nature has been committed, in our opinion, the Courts would be entitled to apply the principle of strict scrutiny test or closer F scrutiny test or higher level of scrutiny. It is commonly believed amongst a section of Academicians that strict scrutiny test in view of the Constitution Bench decision of this Court in Ashok Kumar Thakur (supra) is not applicable in India at all.

Therein reliance has been placed in Saurabh Chaudri & G Ors. v. Union of India & Ors. [(2003) 11 SCC 146] wherein this y•

Court stated :

"36. The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by H Shri Salve cannot be applied in this case. Such a test is

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SERVICES SELECTION BOARD [S.B. SINHA, J.)

not applied in Indian courts. In any event, such a test may be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly unreasonable proceeded on the doctrine that constitutionality of a statute is to be presumed and the burden to prove contra is on him who asserts the same."

In a concurrent opinion, one of us, S.B. Sinha, J., stated, thus: c "92. Mr Nariman contended that provision for reservation being a suspect legislation, the strict scrutiny test should be applied. Even applying such a test, we do not think that the institutional reservation should be done away with D ~ having regard to the present-day scenario ... "

Saurabh Chaudri (supra) read as a whole therefor refused to apply the strict scrutiny test in the case of reservation evidently having regard to the Clauses (1) and (4) of Articles E 15 and 16 of the .Constitution of India. It is noteworthy to point out that the facts of this case did not bear out an ex facie -"y ' unreasonableness and therefore the court did not employ the strict scrutiny test. The Constitution Bench in Ashok Kumar Thakur (supra), itself, held: F "252. It has been rightly contended by Mr Vahanvati and Mr Gopal Subramanium that there is a conceptual difference between the cases decided by the American Supreme Court and the cases at hand. In Saurabh Chaudri v. Union of lndia626 it was held that the logic of G ._, strict classification and strict scrutiny does not have much relevance in the cases of the nature at hand ... "

[Emphasis supplied]

Saurabh Chaudri (supra) itself, therefore, points out some H

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A category of cases where strict scrutiny test would be applicable. Ashok Kumar Thakur (supra) solely relies upon Saurabh Chaudri to clarify the applicability of strict scrutiny and does not make an independent sweeping observation in that regard.

We are of the opinion that in respect of the following 8 categories of cases, the said test may be applied:

1. Where a statute or an action is patently unreasonable or arbitrary. [See Mithu v. State of Punjab [(1983) 2 SCC 277]. c

2. Where a statute is contrary to the constitutional scheme. [See E. V. Chinniah (supra)].

3. Where the general presumption as regards the constitutionality of the statute or action cannot be D invoked. ~

4. Where a statute or execution action causes reverse discrimination.

E 5. Where a statute has been enacted restricting the rights of a citizen under. Article 14 or Article 19 as for example clauses (1) to (6) of Article 19 of the ,,... Constitution of India as in those cases, it would be for the State to justify the reasonableness thereof.

F 6. Where a statute seeks to take away a person's life and liberty which is protected under Article 21 of the Constitution of India or otherwise infringes the core human right.

G 7. Where a statute is 'Expropriatory' or 'Confiscatory' in nature. .,. .

8. Where a statute prima facie seeks to interfere with sovereignty and integrity of India. H However, by no means, the list is exhaustive or may be

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_rl.. held to be applicable in all situations. A

In Anuj Garg & Ors. v. Hotel Association of India & Ors. [(2008) 3 SCC 1), this Court, stated :

"46. It is to be borne in mind that legislations with pronounced "protective discrimination" aims, such as this B one, potentially serve as double-edged swords. Strict scrutiny test should be employed while assessing the .., implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned c legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means." D In United India Insurance Company Ltd. v. Ajay Sinha & Anr. [(2008) 7 SCC 454], it is stated :

"26. An option is given to any party to a dispute. It may be a public utility service provider or a public utility service recipient. The service must have some relation with public utility: Ordinarily, insurance service would not come within the public utility service. But having regard to the statutory scheme, it must be held to be included thereunder. It is one thing to say that an authority is created under a statute to bring about a settlement through alternate dispute resolution mechanism but it is another thing to say that an adjudicatory power is conferred on it. Chapter VI-A, therefore, in our opinion, deserves a closer scrutiny. In a case of this nature, the level of scrutiny must also be high. (See Anuj Garg v. Hotel Assn. of India.)" G . ·~

As we have already stated, in the event the state issues any instruction through circular in the National Capital Territory of Delhi to this effect, the same will deserve strict scrutiny. After following the precedent with respect to strict scrutiny it is H

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A pertinent to explore some foundational principles in this regard.

At the heart of the applicability of this doctrine in protective discrimination cases, including affirmative action matters, is the challenge before the court to facilitate the translation of the constitutional vision of substantive equality into a practical B feature of the polity. The enabling environment must have objectively laid down policy attributes so much so that the targeted benefits are accrued to parts of polity for which they are meant. As the final arbiter on constitutional interpretation, the court is duty bound to delineate the four corners of the c legislative policy which is amenable to the constitutional epithets of equality as also to Article 21. The state has to play within the rules set by the court in this regard.

It must be borne in mind at this juncture that in reality, D various kinds of rights do not operate independently of each other. And importantly, when State puts its weight behind any particular set of rights by showing compelling interest, the courts have to ensure that the transfer or accrual of benefits as a result of the State action does not end up abrogating the · E competing rights of others to an unnecessary extent. The constitutional grant of power to state in this respect is channeled by the mandate of this court on the front of implementation. ¥'·

First responsibility of the court is to determine whether the ends purported to be sought by the executive are "compelling." F This process is under the intense gaze of the court because the government is impinging upon somebody else's core constitutional rights and therefore only the most pressing circumstances can justify the government action.

G The other important responsibility is to inquire and assess that the law is a narrowly tailored means of furthering those .,. . governmental interests. Narrow tailoring should satisfy the court that the law capture within its reach just the adequate activity, neither more or less, than is necessary to advance those H compelling ends. In the ultimate analysis, the State action must

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be narrowly drawn in a manner that it can qualify to be the least A /'. restrictive alternative available to pursue those ends. Without this inquiry into "fit" between the ends and the means enables it will not only be difficult for the courts to test the sincerity of the government's claimed objective but also the law may be suffer from the vice of arbitrariness. Article 14 guarantee against B uncanalized and arbitrary laws has to be rigorously pursued by the court in this regard. The State in such cases may act not only through a law but also through an executive instrument like _,. circular or even simple practice or convention and the intense gaze of the Court in this behalf is all pervasive. In fact, more c inarticulate the State action would be, greater would be the intensity of the scrutiny by the courts.

Courts must guard against that protective discrimination clauses are not used as pretexts for an invidious purpose. The G ' '\ political compulsions and extraneous vote considerations in the functioning of the legislature are mentioned by a prominent political science scholar, John Hart Ely in his landmark book, Democracy and Distrust. He says that "special scrutiny, in particular its demand for an essentially perfect fit, turns out to H

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A be a way of 'flushing out' unconstitutional motivation." Justice Sandra Day O'Conno~s in Johnson v. California, 543 U.S. 499, 505 (2005) observed that "racial classifications raise special fears that they are motivated by an invidious purpose" and that strict scrutiny is designed "to 'smoke out' illegitimate uses of race by assuring that the executive is pursuing a goal important enough to warrant use of a highly suspect tool."

Protective discrimination may be used to curtail the extremely hard won civil and political rights granted by the Constitution. We have the backdrop of freedom struggle to engage with in this regard. Rights of the accused as part of the fair trial rights, equality rights, right to liberty and personal autonomy and other such rights are to be fiercely protected against any blind policy onslaught of the times. The government must have a overwhelming compelling interest to justify limitations on the freedom of association, free exercise of religion, free speech, right to vote, right to travel et al.

Strict scrutiny thus paves the way for a more searching judicial scrutiny to guard against invidious discriminations which could have been made by the State against group of people in violation of the constitutional guaranty of just and equal laws. The court must adopt a weighted balancing approach or in other words pursue an even-handed balancing of the interests

44Copy pinpoint44. The only question which survives is as to whether S. F Pushpa (supra) constitutes a binding precedent. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. In S. Pushpa (supra), decisions of the Constitution G Benches of this Court in Mi/ind (supra) had not been taken into consideration. Although the case of Chinnaiah (supra) was ,' decided later on, we are bound by the same. It is now a well settled principle of law that a division bench, in case of conflict between a decision of a Division Bench of two Judges and a H decision of a larger Bench and in particular Constitution Bench,

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SERVICES SELECTION BOARD [S.B. SINHA, J.] A ,.. would be bound by the latter. [See Mis Sardar Associates v. Punjab & Sind Bank, CAs @ SLP (C) Nos. 5249-5250 of 2008 decided on 31st July, 2009]

This Court in Marri Chandra Shekhar Rao (supra) categorically held that when a person is held to be a member B of scheduled caste for one State, he cannot be treated as such in another. In Mi/ind (supra}, it was categorically held that the High Court, in exercise of its supervisory jurisdiction, under Article 227 of the Constitution of India, cannot make any roving inquiry for the purpose of finding out as to whether a person belonging to one caste would, for one reason or the other, can c be held to be belonging to another caste or tribe which had been notified as scheduled caste or scheduled tribe. It is also well known that a decision rendered in ignorance of a binding precedent and/or in ignorance of a constitutional provision, would be held to have been rendered per incuriam . D .;it- In Harminder Kaur & Ors. v. Union of India & Ors. [2009 (7) SCALE 204], this Court held:

"16. A judgment of a Constitution Bench of this Court laying E down the law within the meaning of Article 141 of the. Constitution of India must be read in its entirely for the ·-¥ purpose of finding out the ratio laid down therein. The Constitution Bench, in no uncertain terms, based its decision on the touchstone of the 'equality clause' F contained in Articles 14 and 16 of the Constitution of India. Emphasis has been laid at more than one place for making appointments only upon giving an opportunity to all concerned. Appointment through side-door has been held to be constitutionally impermissible." G > ·--, [See also Oriental Insurance Company Limited v. Mohd. Nasir and Another (2009) 6 SCC 280]

In Black's Law Dictionary, 8th edition, 2004, it is stated:

"There is at least one exception to the rule of stare decisis. H

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A I refer to judgments rendered per incuriam. A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind: first, where the judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with B which attorneys and judges may comb the case law, errare humanum est, and sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should c have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; thus, it has no authority .... The same applies to judgments rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that the legislation was not invoked." Louis-Philippe Pigeon, Drafting and Interpreting Legislation 60 (1988) "As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory pr9vision or of some authority binding on the court concerned, so that in such cases some features of the decision or some step in the reasoning on ..,. which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence." Rupert Cross & J. W. Harris, Precedent in English Law G 149 (4th ed. 1991)" In an article "Final Appellate Courts Overruling Their Own "Wrong" Precedents: The Ongoing Search For Principle" by B.V. Harris published in (2002) 112 LOR 408-427, it is stated: H

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SERVICES SELECTION BOARD [S.B. SINHA, J.]

"A decision may be held to be per incuriam where relevant statutory provisions, or binding case law authority, have been overlooked or misinterpreted in arriving at the holding in the precedent ....

Considerations Relevant To Deciding whether to Defer to or Overrule Precedent:

The first consideration for a final appellate court called upon, in the exercise of its discretion, to overrule an allegedly wrong precedent of its own, will be whether the precedent can be distinguished on the facts, including c changing social and other contexts, or distinguished on the law. If the precedent can be distinguished,·overruling will not be necessary. The subsequent appellate court will rather be free to choose not to follow the precedent which can be distinguished. D

·Second, the precedent should be considered closely to determine whether the decision was reached per incuriam. A per incuriam precedent may be overruled.

Third, the workability of the precedent should be assessed. E Evidence of lack of workability may justify overruling.

The fourth consideration will be whether any reasons have been advanced in the appeal which were not considered in deciding the precedent. This category could arguably be F included in many circumstances, either in the first category as a form of distinguishing, or in the second category if the omission is sufficiently serious to cause the precedent to be per incuriam. G All of the first four considerations have traditionally been ·~ accepted as exempting subsequent appellate courts from the obligation to follow precedent."

In the context of overruling the two leading precedents {de Freitas v. Benny [1976] AC 239 and Reckley v. Minister of H

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A Public Safety and Immigration (No. 2) [1996] A.C.527} which had held the exercise of the prerogative of mercy to be non- justiciable, Lord Slynn of Hadley in Lewis v. Att. Gen. Of Jamaica [2001] 2 AC 50 at p. 75, stated:

B "The need for legal certainty demands that they should be very reluctant to depart from recent fully reasoned decisions unless there are strong grounds to do so. But no less should they be prepared to do so when a man's life is at stake, where the death penalty is involved, if they are satisfied that the earlier cases adopted a wrong c approach. In such a case rigid adherence to a rule of stare decisis is not justified."

The case of Attorney General v. Blake [(1997) Ch D; (1998) Ch 439 CA; and (2001) 1 A.C.268 HL] has been referred by SIR Richard Buxob in his article How the Common Law Gets Made: Hedley Byrne and Other Cautionary Tales" [(2009) 125 L.Q.R. 60). as decision given per incuriam. Prof.AW.Brain has prepared a memorandum on the said note. In the particular case in 1961 Blake pleaded guilty to five offences against Official Secrets Act 1911. He had communicated information which he has come to possess as a member of the Secret Intelligence Service (SIS). He was ¥-

sentenced term of 42 years imprisonment. The House of Lords decision stated that Blake was a member of the security and intelligence. However it is stated by the author that there is no practice of describing the SIS as a security service; it is not concerned with security but with foreign intelliegence, including the sponsorship of espionage and was "an offshoot of some sort of the Foreign Office, possibly also being associated with the Cabinet Office or the Prime Minister's Personal Office. " Thus there was no details explained as regards to the ~' employment of Blake and it was not clear. The author states that it was a well settled in 1940s that the relationship between a member of the armed services and the crown was non- contractual. However it is stressed that if the nature of H

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employment of Blake was in civil capacity then the application of above observation needs to be considered. But more importantly, what needs to be addressed is that "to treat incidental undertakings by members of the armed services as actionable contracts would lead to absurdity". It is also pointed out that "the relationship between the Crown and members of the armed services is and long has been regulated by disciplinary proceedings, by failure to promote, or by retirement, not by the private law of contract or tort. If this position is to be changed by a judicial decision then the -~ court surely needs to attend to the radical nature of such a c change." Also it is noted that the "signing the Official Secrets .Acts" created a binding contract relating just to one aspect of Blake's duties, is something which is problematic. Thus author states that "the supposed contract case was decided without any careful investigation of the very existence of a binding contract, or of its scope and character, assuming there to have A· been one. It does not seem to be a good idea to proceed in this way, and at end of day there is therefore a strong case for regarding the decision as having been given per incuriam in their Lordships' attention had never been adequately directed to ei~her the relevant facts or the relevant law." [See A De9ision Per lncuriam? -Prof.AW.Brian Simpson, The Law Quarterly ~,.,,,- Review, volume 125, July 2009, p.433]

We have noticed hereinbefore that the premise on which S. Pushpa (supra) was rendered, namely, Marri Chandra F Shekhar Rao (supra), had no application to union territories was not correct.

45Copy pinpoint45. Would we be violating the norms of judicial discipline in ignoring the decision of this Court in Pushpa is the question, G having regard to the provisions contained in Article 141 of the ' '+ Constitution of India?

The question is a difficult one. On the one hand, this Court emphasizes the need for speaking in one voice and/or adhering to the doctrine of certainty so as not on:1 to enable this Court H

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(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent ..- · Bench of lesser or co-equal strength.

F (2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of • <

coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than

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the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions :

(i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and -~ (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger c quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of. exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the D correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Ors. and Hansoli Devi and Ors. (supra)." E _.., Yet again, recently in Nagar Palika Nigam v. Krishi Upaj Mandi Samiti & Ors. [(2008 AIR SCW 7914] having regard to the provisions of Order VII Rule 2 of the Supreme Court Rules, 1966, this Court refused to allow the appellant therein to raise the question of vires of a statute as such a contention had not F been raised before the High Court.

The question came up for consideration before a Three Judge Bench in Official Liquidator v. Dayanand & Ors. [(2008) 1Osec 1], wherein the necessity to maintain judiCial discipline G > '<f was reiterated, stating :

"90. We are distressed to note that despite several pronouncements on the subject. there is substantial increase in the number of cases involving violation of the basics of judicial. discipline. The learned Single Judges H

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A and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional B ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase t- c in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.

D 91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is >r •

required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law."

46Copy pinpoint46. Should we consider Pushpa to be an obiter following the said decision is the question which arises herein. H

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SERVICES SELECTION BOARD [S.B. SINHA, J.]

.A We think we should. The decisions referred to hereinbefore A clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely Marri Chandra Shekhar Rao and E. V. Chinnaiah. Marri Chandra Shekhar Rao had been followed by this Court in a large number of decisions including Three B Judge Bench decisions. Pushpa, therefore, could not have ignored either Marri Chandra Shekhar Rao or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the Constitutional scheme as contained in clause (1) of Articles 341 and 342 of c the Constitution of India putting the State and Union Territory in the same bracket.

Following Dayanand (supra), therefore, we are of the opinion that the dicta in Pushpa is an obiter and does not lay down any binding ratio. D

47Copy pinpoint47. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. The appeal and the writ petition are allowed. In the facts and circumstances of the case, there shall be no orders as to costs. E G.N. Appeal and writ petition allowed. --f