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Section: A

Category: Research Paper

Paper Code: RP-RD-01

Page Number: 1 - 17

Date of Publication: February 10, 2021

Citation: Dr. Rangaswamy D, Affirmative Principle: Making, Breaking and Shaking (MBS) Approach of Judiciary, 1 AIJACLA, 1, 1-17, (2021),

Details Of Author(s): Dr. Rangaswamy D, Assistant Professor of Law, Karnataka State Law University, Hubballi, Karnataka

ABSTRACT The affirmative Principle (AP) is the substratum for a just society. In the backdrop of its immense importance, countries across the globe have inculcated and sustained with AP by providing constitutional as well as legislative status. Judiciary as the roadmap of AP is crystal clear from the decisions of the various Courts. However, it is evident from the judicial verdicts that instability in the judicial approach resulted in fluctuation of the sense of social justice in India. This paper conceptualizes those approaches under Making Approach (MA), Breaking Approach (BA), and Shaking Approach (SA). This threefold approach symbolizes the fact that on the one hand many of the cases decided by the Supreme Court of India (SCI) provoked way for AP by adopting MA and an equal number of the instances wherein SCI has scaled down the sanctity of the AP by invoking BA and SA. This changing nature of the judicial approach heightened the sense of insecurity amongst marginalized sections of the society. A substantial number of the decisions including the decision given Supreme Court of India on 25th August 2020 emphasizing the need for inner reservations, structurize the concept of social justice. There are an equal number of cases including the decision rendered by the Supreme Court of India on 22nd April 2020 invalidating 100% reservation provided for Scheduled Tribes in Scheduled Area in the State of Andra Pradesh is an added crisis to AP. The purpose of the present paper is to analyze the landmarking decisions rendered by the Supreme Court of India wherein social justice is interpreted in a sustained and intermittent manner. The researcher, based on the recent decisions of the Supreme Court, of the firm opinion, that understanding and interpreting AP in its loose sense would seriously dilute the sacred goals encapsulated under the Constitution. The purpose of the paper is to trace out the rationale of assessment of AP by the judiciary and to counter such rationale in the backdrop of the veracity of the AP. KEYWORDS Affirmative Principle, Constitution, Judiciary, and Social Justice

INTRODUCTION Justice is a trained habit[i] and perfect virtue.[ii]It is a human construction.[iii] It ensures the inviolability of the individual by liberating the individual[iv] and conceptualizes social contract theories.[v] It symbolizes equal treatment and requires respect for the inalienable rights of the individual.[vi]It is also a process of human construction encompassing a wide range of distributions.[vii]Reduction of injustices and promotion of justice was the major concerns of the State since the earliest period.[viii]These are the tunes of the welfare State.[ix]Accordingly, the principal end of the State always will be justice. The thrust for arguments for the elevation of the just society is unequivocal in ancient religious accounts. Integrating justice with age-old practices and long-standing conditions is a challenging task for the States. Longstanding practices and historical exploitations mutilated the basic premises of justice. In a country like India, such injustices were meted out on a higher scale. The ugly facet of the Indians is rightly stated as follows: “Caste-ridden social setting was not only full of social inequality and injustice but also against the spirit of fraternity and human dignity. Under the Hindu social order, the 'untouchables' or Dalits, belonging to the lowest stratum of the social hierarchy, were treated as 'inferior' human beings and therefore considered 'unworthy' of any individual rights and privileges. Owing to their inferior social status, they were believed to be the recipients only of the severe social disabilities; slavery, and indignity.”[x] Though in the backdrop of westernization, the concept of AP is criticized in India, we should understand the inherent nature of the country to properly understand the rationality of AP in India. In this context, it is stated that “… the major differences between India and any other country in the world, lies in the diversity of Indian life. Centuries of conquest and infiltration from without have made Indian society a complex of races, languages, creeds, and customs more variegated than that of Europe, and the domestic history of India has been till very recent times a record of constant conflict between rival races and rulers.” [xi] The foundation of discrimination is the stereotyped attitude of the human being. Self-interests and identification with a group is the stepping stone of the stereotype attitude of the human being. It is scientifically proved that every human being subject to such kind of motive to defend and justify his personal and collective interest of a given group. This kind of attitude of the human being and society is characterized as System Justification Theory.[xii] Such a kind of implicit bias, negative attitudes, and prejudicial mindset of the society demonstrates great hurdles to create an inclusive society. The stereotype attitudes accelerate the hierarchical system,[xiii] impede humanity,[xiv] dilute efficiency of a person,[xv] interfere with the simplest rationality of a person,[xvi] and intrinsic weakness of the society.[xvii] The domination of the powerful people over overweight people resulted in a meritocratic attitude to exclude the powerless from the mainstream of society. As evident in the succeeding part, AP based social justice is a challenging task. It requires a free and unbiased judicial system. It is stated that “No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to Exercise it promptly and efficiently, in case of need on any proper call.”[xviii] Accordingly, the judicial approach and social justice-based jurisprudence adopted by the Indian judiciary has infused new insight to the AP. The vast recognition of social justice through the series of cases while interpreting and applying constitutional provisions constitutes a significant development of AP. By Making-Breaking-Shaking (MBS) approach the author is of the perception that the application and interpretation of AP in concretizing, cracking, and distressing rationale of AP is unstable and incoherent. In the context of a series of judgments delivered by the Supreme Court. The purpose of the article is to critically analyze the basis of the MBS approach of the Supreme Court of India.

AFFIRMATIVE PRINCIPLE – JURISPRUDENTIAL BACKGROUND The concept of social justice is complicated and historical.[xix]Affirmative principle as the guiding force of social justice is extensively practiced across the globe. Most developed country like the United State of America is not immune from the application of AP.[xx] The sketch of affirmative actions under jurisprudence is visible under the renowned work of naturalists.[xxi] The concept of AP is closely connected with the concept of the distributive justice of Aristotle. In his renowned work ‘Nicomachean Ethics,’ he has provided detailed accounts of justice.[xxii] The sociological school of law has infused new blood into AP. Similarly, AP is the proclaimed claim of American realism. The strength and stamina of the positivism is strongly connected with AP. The classic works of John Rawls[xxiii] and Amartya Sen[xxiv] substantially molded the shape of AP. In the background of its paramount importance, AP has been given unique importance under the international legal regime. The regional mechanisms devised in line with the international legal regime have also accommodated AP as the foundation of their developmental goal. Extensive scope human right approach is the added advantage for AP.[xxv]The innumerable cases decided by the Supreme Court and High Courts have accelerated the growth rate of inclusive society and protection of human rights of marginalized sections. The role of the Constitution in reconstructing the social life of the particular nation is unequivocal.[xxvi] Constitution symbolizes its societal structure. As part of their sacred goals, Constitutions across the globe have mirrored social justice and AP in the text of the Constitution. AP principle rooted with Constitution can only invigorate social justice in its true sense. As part of its constitutional commitment and promise of justice, the framers of the Constitution have sprinkled AP with golden ink under the Constitution. The speed of social justice is further accelerated with the Constitutional amendment.

MBS APPROACH The inconsistent attitude of the judiciary compelled the author to analyze affirmative principle with the MBS approach. A decisive and unflattering way of articulation of social justice is crucial to perpetuating the aspirations of the Constitution. Judicial role is conclusive in this process of realization of ends of the Constitution. It is rightly observed that The judicial process is there in microcosm. We -go forward with our logic, with our analogies, with our philosophies, till we reach a certain point. At first, we have no trouble with the paths; they follow the same lines. Then they begin to diverge, and we must choose between them. History or custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of our law, must come to the rescue of the anxious judge, and tell him where to go.”[xxvii] Accordingly, a persistent role has been played by the judiciary to organize AP symmetrically in the background of constitutional mandates. Nevertheless, the desultory approach adopted by the judiciary in synchronizing spheres of social justice has germinated serious concerns for social justice and AP. The purpose of this part of the paper is to present a cyclical approach of the judiciary in applying and interpreting AP to sustain social justice.

Making Approach (MA) The contribution made by the State of Karnataka in molding and shaping the affirmative actions of the nation is remarkable. The leading cases rooted in the State of Karnataka significantly transformed constitutional jurisprudence.[xxviii]There have been judges committed deeply to affirmative actions as well as social justice through at a critical moment in our history their commitment to political democracy wavered and dithered. The clear-sighted case for MB is M.R.Balaji and Others v. State of Mysore.[xxix] The fundamental question which came up before the Supreme Court of India in this instant case was relating to the validity of 68% reservation provided for reservation pool and sub-division of backward classes and most backward classes for reservation. The references taken by Justice P.B. Gajendragadkar to format AP for egalitarian society is outstanding. He authoritatively asserted the need for AP to banish social situations and longstanding privileges that stood for an elite class. Despite his concerns for professional ability and social competence of the meritorious candidates, how AP was reasoned by Justice P.B. Gajendragadkar is an appealing approach for social justice in India. K.C. Vasanth Kumar & Another v. State of Karnataka[xxx]proclaimed an instance for MB approach for AP in India. Justice Chinnappa Reddy a stern loyalist to the constitutional ideology and heralder of social justice postulated AP sensibly and logically. Articulation of social justice in the backdrop of the meritarian principle is a momentous milestone for the development of AP in India. Pragmatic interpretation of AP paved the way to bring radical social change and to uproot stereotypic attitudes against marginalized sections of the society. The sphere of social justice is immensely benefited by the MA of the Supreme Court of India in subsequent cases. The Indra Sawhney[xxxi] invigorated AP by rationalizing the reservation policy of the State. After intensive consideration of the material and collateral issues of AP, the court laid down sustained principles such as creamy layer, 50 %, and the importance of means test. M. Nagaraju[xxxii] reiterated Indra Sawhney and upheld reservation in promotion by backing 77th,[xxxiii] 81st,[xxxiv] 82nd[xxxv], and 85th[xxxvi] of the Constitutional amendments. B.K. Pavitra and Ors v. Union of India and Ors (Pavitra II)[xxxvii]is a provocative verdict in invigoration of social justice and AP in India. The objections raised in these batches of the cases filed before the Supreme Court of India were relating to the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted based on Reservation (to the posts in the Civil Services of the State) Act, 2018. The consequential seniority of the employees belonging to SC/ST were safeguarded through this enactment. The Act was enacted by the State of Karnataka in compliance with the dictum of the Supreme Court in B.K.Pavitra I[xxxviii] case. The State of Karnataka meticulously complied with three fold-tests contemplated by the Supreme Court in M.Nagaraj[xxxix] case accordingly complied with the dictum of B.K.Pavitra bypassing this reservation Act. The Reservation Act, 2018 intended to survive the constitutional validity of the Reservation Act, 2002. The major criticism against the application of AP in public employment introduced to the Indian Constitution through the constitutional amendment is efficiency in administration. Article 335 of the Constitution mandates for equivalence of AP with efficiency of administration.[xl] The toughest argument against AP and, still shaking the confidence of the employees belonging to SC/ST serving for the government sector in the country is the efficiency principle. The rational and inspirational judgment delivered by Justice D.Y. Chandrachud would certainly drip down efficiency ground leveled by conventionalists against AP. Speaking for the bench Justice D.Y Chandrachud observed that “The Constitution does not define what the framers meant by the phrase “efficiency of administration”. Article 335 cannot be construed based on a stereotypical assumption that roster point promotes drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep-rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate.” The configurational analysis of the phrase ‘efficiency in administration’ is expressed by the justice under a two-fold test. Firstly, the Inclusive Principle, and secondly, Equal Citizenship Principle. The extract of IP principle as contemplated by Justice D.Y. Chandrachud is as follows; Efficiency of administration in the affairs of the Union or a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates the realization of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance that is skewed against the marginalized. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity.” To ameliorate AP in the context of the widely debated and extensively contested efficiency principle, Justice D.Y. Chandrachud has incorporated ECP. The celebrated observation of the ECP is expressed by Justice D.Y. Chandrachud in the following words: Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to equal citizenship. Equal citizenship recognizes governance that is inclusive but also ensures that those segments of our society which have suffered a history of prejudice, discrimination, and oppression have a real voice in governance. Since inclusion is inseparable from a well-governed society, there is, in our view, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or a State.” Prathvi Raj Chauhan v. Union of India & Ors[xli] is another instance of the MB approach. The MB of the Supreme Court of India is evident from the recent judgment delivered by the apex court of the country on 10 February 2020 in the above case. The AP was considered in the above case in the backdrop of insertion of Section 18A to Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the Parliament of India.[xlii] It is important to reiterate and emphasize that unless provisions of the Act are enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream and ideal of a casteless society will remain only a dream, a mirage. The marginalization of scheduled caste and scheduled tribe communities is an enduring exclusion and is based almost solely on caste identities. It is to address problems of a segmented society, that express provisions of the Constitution which give effect to the idea of fraternity, or bandhutva (बनधधतव) referred to in the Preamble, and statutes like the Act, have been framed. These underline the social – rather collective resolve – of ensuring that all humans are treated as humans, that their innate genius is allowed outlets through equal opportunities and each of them is fearless in the pursuit of her or his dreams. The question which each of us has to address, in everyday life, is can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy that is committed to equality and the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity amongst all sections of the community without reducing the concept (of the fraternity) to a ritualistic formality, a tacit acknowledgment, of the “otherness” of each one’s identity.” The decision of the two judges’ bench of SCI in Pravakar Mallick & Anr v. The State of Orissa & Ors[xliii] dismissing the appeal against the decision of the High Court of Orissa reiterated the need for adequate procedural compliance of the State in ensuring reservation in promotion. The court rejected the argument of the State of Orissa considering a resolution passed by the State government to promote SC/ST candidates in line with consequential seniority rule. The court validated the promotion of SC/ST against other categories but cautioned the State to comply with the mandate of the court. The apex court of the country hammered legislative delay in acting upon the AP and warranted the government to do the needful in the backdrop of the judicial verdicts. The legislative branch being a representative and responsible branch of the State has an important role in framing laws. It is a clear case to showcase the lethargic attitude of the legislature in fulfilling their constitutional obligation. The legislative process is sanctified under the constitution by stipulating timebound framing of laws. Exercise of legislative power within the framework of the Constitution is the essence of rule of law.[xliv] To address emergencies, the executive head of the State is authorized to exercise legislative power in terms of ordinance making power.[xlv]Democratic process shall not be subverted by the taking resort to administrative legislation. Legislatures consisting of representatives of the people of the State should understand the sense of their duty towards people by enacting the laws in line with changing conditions and expectations. An unsubstantial and feeble argument put forward by the State to defend consequential seniority rule-based on a resolution of the government indicates irresponsibility on the part of the government in protecting the interest of the Scheduled Caste/Scheduled Tribes. It is a clear fraudulent scheme of the legislature in subverting constitutional goals and protecting the interest of the weaker sections. It is shame on the part of the legislature to waiting for a calling bell from the judiciary to act upon their constitutional obligations and discharge their duty in line with the order of the Court. The accelerated nature of the law-making process,[xlvi] when the interest of the marginalized section involved is evident from the State of Karnataka and such an augmented process was a ground for attack to challenge very integrity of AP in B.K Pavitra II case. The State of Panjab & Ors v. Davinder Singh & Ors. [xlvii]dealt with a rational basis of the preferential treatment to be given for sub-categories out of reserved categories to ensure adequate representation of such categories in public services. Reiterating the verdict of E.V. Chinnaiah v. State of Punjab and Ors,[xlviii]SCI held that “by allotting a specific percentage out of reserved seats and to provide preferential treatment to a particular class, cannot be said to be violative of the list under Articles 341, 342, and 342A as no enlisted caste is denied the benefit of reservation.” The argument that the legislative authority shall not bifurcate castes listed by the presidential list and State shall not deprive one class of the benefits of a reserved category by such bifurcation was strike down by the Court in this instant case. The case clear indication of the MB for the reason that a particular group within the reserved category shall not be cornered the benefits of the reservation due to command of the dominated group in a reserved category. The need for such a structural approach required in a social life is rightly pointed out in the following terms; Sociology seeks to discover the principles of cohesion and order within the social structure, how it roots and grows within an environment, the moving equilibrium of changing structure and changing environment, the main trends of this incessant change and the forces which determine its direction at any time, the harmonies and conflict the adjustment and maladjustments within the structure as they are revealed in the light of human desires, and thus the practical application of means to ends in the creative activities of social man. In doing so it demands the insight of the interpreter. He must endeavor to express what seems to him most significant and illuminating in the vast complex of social relationships. He must continually adjudge and select the more relevant from the less relevant aspects and thus he is brought face to face with a problem of valuation which vastly different from any presented by the physical science, as we shall show in due course. He must treat relationships which both in themselves and their conditions cannot be reduced to formulate but which are infinitely variable and subtle. He must deal with statistics the interpretation of which involves a fine perception of the complex pater of human behavior.” [xlix]

Breaking Approach (BA) Social justice is the immense importance of the Constitution of India.[l]It does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation.[li] Nevertheless, there are noticeable constraints to achieve a fair and equitable society. Literacy, ignorance, lack of political will, poverty, corruption, etc., are created barricades for nondiscriminatory society. Widespread poverty[lii] and vast literacy restricted the ability of the State to achieve constitutional goals in a calculated manner. However, it is equally important to note that the judiciary itself created a block for meaningful implementation of the AP. The clouded attitude of the judiciary in limelight social justice in line with constitutional goals resulted in blockade for an egalitarian society. The initial phase of BA of SCI is State of Madras v. Champakam Dorairajan[liii] which led to constitutional amendment and insertion of Article 15 (4) of the Constitution.[liv]While adjudicating constitutional controversy arising out of reservation in promotion, the AP was mutilated by the judiciary in Union of India v. Virpal Singh Chauhan[lv] and Ajit Singh Januja v. State of Punjab[lvi] cases by introducing Catch Up Rule.[lvii] This is the clear indication of the SCI to break up AP and gear up the meritarian principle. The question for decision in Dr. Subhash Kashinath Mahajan v. The State of Maharashtra & Anr.[lviii] was on imposing criminal liability on offender punishable under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989[lix] and Indian Penal Code, 1860.[lx] The appellant relied upon the National Crime Records Bureau report on Crime in India 2016- Statistics relating to Police Disposal of Crime/Atrocities against SCs Cases and Police Disposal of Crime/Atrocities against STs Cases. The appellants also emphasized the verdicts of Gurbaksh Sing Sibbia & Ors v. State of Punjab and Nikesh Tarachand Sha v. UO Ito seek a favorable decision. It was contended by the appellants that in the absence of tangible support and evidence, the accused should not be arrested under the provision of the Atrocities Act. Justice Adrash Kumar Goel and Justice Uday Umesh Lalit reviewed the earlier decisions on the view of acknowledged abuse of law of arrest in cases under the Atrocities Act, held that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act. Chebrolu Leela Prasad Rao & Ors v. State of A.P. & Ors[lxi] marked a further reiteration of BA adopted by the SCI. This case from Andra Pradesh generated another instance of BA of judicial process towards AP in the State of Andra Pradesh. Constitutionality of an order[lxii] of Andra Pradesh reserving 100% teaching post for Scheduled Area was challenged before SCI alleging that the notification of the government is against dictum laid down by Supreme Court of India in Indra Sawhney.[lxiii] The very rationale of the decision of the Court was as follows; No law mandates that only tribal teachers can teach in the scheduled areas; thus, the action defies the logic. It is not the case that incumbents of other categories are not available in the areas. When a district is a unit for employment, the ground of phenomenal absenteeism is irrelevant and could not have formed the basis for providing 100 percent reservation. The problem of absenteeism could have taken care of by providing better facilities and other incentives.[lxiv] The central element of the above case is absenteeism. The SCI misconstrued material fact of absenteeism of non-tribal teachers in tribal areas. The phenomenal absenteeism manifested the need for tribal teachers for the tribal areas and streamline the system in line with practicality. The perception of the judiciary to provide incentives for the teachers and accordingly instruct them to work for the Scheduled Area is unfeasible. Commitment of the teacher is a prerequisite for the success of the teaching. Teaching requires a good heart,[lxv] love[lxvi], and passion[lxvii] of the teacher. According to Fried R.L “To be a passionate teacher is to be someone in love with a field of knowledge, deeply stirred by issues and ideas that challenges our world, drawn to the dilemmas and potentials of the young people who come into class each day- captivated by all of these.”[lxviii] He further says “passion is not just a personality trait that some people have and others lack, but rather something discoverable, teachable and reproducible, even when the regularities of school life gang up against it.”[lxix] Teaching is a gift and way of honoring way of our life.[lxx] Spontaneity, humor, and great seriousness often required for teaching[lxxi] cannot to inbuilt amongst these teachers by incentivizing them. These defects could be compensated by reserving those seats for the community of their own. Barring a few cases, there is a great possibility that the teacher from their community could understand the intensity, vulnerability, and immediate risk associated with the learning capacity of the student of the scheduled tribes as he too went through such experiences. The essential elements of passionate teaching such as[lxxii] making the class interesting, teaching and be willing to help students, teach everyone fairly, have an open mind, be understanding hearing point of view, be human and personable, be polite, etc., is possible only through the teachers from the scheduled tribes. Mere incentives or other forms of monetary benefits wouldn’t generate such a sense of duty towards the scheduled tribes rather accepting the job for incentives. Recruitment based on incentives would not create the social intelligence of the teacher.[lxxiii]Much importantly, the current reluctant trend of the teachers to attend duties would not improve merely because of incentives.

Shaking Approach (SA) The SA as proposed by the author here overlaps with the BA. It substantially mirrors BA. Only the line of difference to provide caption is to the ability of judgment resulted in public agitation and protest against decisions of the supreme court. Accordingly, the author would employ this approach based on public sensibility on AP and its possible consequences. All the judgments cracking AP may not trigger the same degree of the sensitization of the society about the AP. But certain decisions resulted in shaking the confidence of the people of the marginalized sections of the country. Dr. Subhash Kashinath Mahajan v. The State of Maharashtra & Anr[lxxiv] This is the instance wherein very sanctity of atrocity law was diluted by the Court by framing guidelines to be followed by the Courts and investigating agency in adjudicating and investigating atrocity cases. Absolute bar against grant of anticipatory bail in atrocity cases was removed and prior approval of appointing authority for the arrest of a public servant for offenses under the Atrocity Act was a mad condition precedent for prosecution. The Court further held that to detect false cases there shall be a preliminary inquiry by the Deputy Superintend of Police and violation of all these above guidelines of the Court amount to Contempt of Court. This is a clear case of judicial activism. The Court encroached upon the legislative domain and damaged the very sanctity of the Atrocity Act. The Court paved way for miscarriage of justice in deserving cases and shook the very objective of the mechanism built to prevent the offenses of atrocities. While a substantial part of the SC/ST community still struggling for equality and protection of their civil rights, the three judges’ bench of Arun Mishra, MR Shah, and BR Gavai dented the inherent deterrence mechanism enshrined under the Atrocity Act. The very basic flaws of the Atrocity Act such as non-registration of cases, procedural delays in investigation, arrest and detention, filing of charge sheets, delay in trial, and low conviction rates, further aggravated by the decision of the Court.

B.K. Pavitra and Ors v. Union of India and Ors (Pavitra I)[lxxv] The case intensively dealt with post-M. Nagaraj condition. The service jurisprudence erected through this landmark judgment was that reservation in promotion should be based on inadequacy of representation of SC/ST in public service and compelling requirement for such reservation. The State of Karnataka had failed to ascertain such conditions as to the inadequacy of the representation and need of requirement for reservation in promotion. The Court came out with ten principles relating to validity of reservation in promotion and consequential seniority. The categorical imperatives of M. Nagaraj's case were upheld and Court insisted on compliance with those imperatives as conditional precedent for reservation in promotion. The apex Court insisted on the review of the employees promoted under consequential seniority within six months from the date of judgment. It is undeniable fact that the decision of the Court demonstrated that the State shall make up its mind in terms of adequacy of the employees and need for representation of the marginalized community. The controversy accelerated by the present case and the sense of insecurity planted by this judicial verdict is unforgettable. Because of the Court decision, the government started to revert the employees promoted based on consequential seniority rule and made them go through the disgusting and hurting attitude of the subordinates after their reversion. The government at the helm of the affairs of the State might have materialized the Court verdict and delayed in protecting the interest of employees promoted based on consequential seniority rule. However, the then Congress government expedited the process and complied with rulings of the Court, and accordingly protected the interest of the SC/ST employees. Though the prospective damage immediately blocked by the legislature by enacting suitable law on the topic, how judgment shook the conscience of the employees belonging to SC/ST during these intermittent days is remarkable.

CONCLUSION Merit is not eloquence of language. Intemperance of the system figuring out some negligible number well-settled cases and comparing them with rest of population to question the rationality of the AP. Indeed, it is the frustrated belief that the employee appointed based on the merit principle can only boost the quality of the institution. The author himself has witnessed and experienced such a notion. The ideological and strategic attempt of the head of the institution to watering such a kind of merit crystal clear despite its ability to cope up with contemporary issues. It is highly derogatory to say that affirmative action would rob the qualified and enhance. The author himself has personally figured and measured so-called meritarian ideologies and functionalities. The author would like to equally subscribe to the fact that despite the opportunity availed by AP, failing to cope up with so-called meritarian principles or at least endeavoring towards such meritocratic standards is highly condemnable. It defrauds the very concept of AP and demoralize the basis of affirmative actions. De-penalisation of human dignity since the earliest period produced an official type of affirmative action. Depreciation of the life of the human being due to the delusion of scholars and rulers mutilated just society and shaded egalitarian principles. It blocked all the ways available for the marginalized section to inculcate and develop meritocratic principles par with elite society. Constitution has congested scope for injustice and discrimination. By and large social justice as a constitutional promise of the framers of the Constitution has been respected, if not fulfilled, by all concerned. Discrimination is the deeper manifestation of status and opportunity. The inevitable consequences of negative labeling and stereotyping requires a strong, consistent, and independent judiciary. In rationalizing AP in the backdrop of individual, structural, and internalized stigmatization, the judicial power would be the elementary source. The indispensable role of the judiciary in stitching equality and rule of law principle with judicial scrutiny is heralded by the Supreme Court of India in the following words. “There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things, justice both social and economic.”[lxxvi] Though the AP is thus well settled its application is a matter of considerable difficulty and in assessing the validity of an impugned provision of law to find out its rationality, the Court must carefully guard the deliberative objectives of the laws and practical realities. Despite its inherent and manipulated constraints, the judiciary has performed its leading role in structuring affirmative action’s fairly and squarely. The constitutional adjudication of AP as part of the social justice, the court must also carefully guard itself against questioning the wisdom of the legislative provision. The views of Jefferson would be relevant to emphasize the concept of justice. He says "Man was created for social intercourse, but social intercourse cannot be maintained without a sense of justice; then man must have been created with a sense of justice."[lxxvii] The fundamental laws of this country are rooted with AP aspire sense of protection and dense of constitutional faith. Any scratch and stitch of these laws accelerate the impulse of these communities. Despite, innumerable schemes and programs designed as part of the AP, these communities are leading their livelihood in highly objectionable and unpleasant conditions. Any sort of inconsistency and irrationality in assessing the genesis and generousness of AP by the judiciary may shake the very confidence in the constitutional system and governance. Wherefore, there is a need for a sensitive judicial approach in adjudicating cases relating to AP.

[i] Aristotle, The Nicomachean Ethics, London,124, (George Routledge and Sons Ltd, 1910), (translated to english by Rev. D.P.Chase). [ii] Aristotle, The Nicomachean Ethics, London, 259 (Harward University Press, 1926), (translated to english by H.Rackham). [iii] Michael Walzer, Spheres of justice : a defense of pluralism and equality,5, (New York: New York : Basic Books Inc, Publishers, 1983). [iv] John Rawls, A Theory of Justice, 3, (Harvard University Press: Cambridge, Massachusetts, 1971). [v] J.W.Gough, The Social Contract, Oxford, (Clarendon Press, 1957). [vi] David Miller & Michael Walzer, Pluralism, Justice and Equality,3, (Oxford University : Oxford University Press, 1995). [vii] Michael Walzer, Spheres of Justice : A Defense of Pluralism and Equality, (USA: Basic Books Inc, 1983). [viii] Michael Goodhart, Injustice - Politcal Theory for the Real World, (Oxford University Press, Oxford, 2018), Miranda Fricker, Epistemic Injustice - Power and the Ethics of Knowing, (Oxford , Oxford University Press, 2007), Barrington Moore Jr. Injustice - the Social Bases of Obedience and Revolt, (Macmillan Press, London, 1978). [ix] Huntington Cairns, Legal Philosophy From Plato to Hegel. Baltimore, 118, (Johns Hopkins Press, 1949). [x] Vibhute, K.I., Right to Live With Human Dignity Of Scheduled Castes & Tribes: Legislative Spirit And Social Response - Some Reflections, 44(4) JILI, 469-503, (Oct- Dec 2002). [xi] Coupland R. Constitutional Problems In India, London, (Oxford University Press, 1944). [xii] T.Jost, Gary Blasi, System Justification Theory and Research: Implications for Law, Legal Advocacy and Social Justice, 94(4), 1119-1168, 1129, (California Law Review, July 2006). [xiii] Walter G.Stephan, A Cognitive Approach to Stereotyping, in Daniel Bar-Tal,(edit) Stereotyping and Prejudice - Changing Conceptions, 37-58, (New York, Springer Science , 1989). [xiv] Ryan Preston-Roedder, Three Varietes of Faith, 46(1), 173-199, 176. [xv] Ryan Preston-Roedder, Faith in Humanity, 87(3), 664-687, 680, (Philosophy and Phenomenological Research , November 2013) [xvi] Gordon W Allport, The Nature of the Prejudice, 190, (London: Addison-Wesley Publishing Company, 1954). [xvii] John Dewey, Freedom and Culture, 128, (New York: G.P.Putnam's Sons, 1939). [xviii] Simeon E.Baldwin, The American Judiciary, 3, (New York: The Century Co, 1905). [xix] K.D.Irani & Morris Silver, Social Justice in the Ancient World, London : Greenwood Press, 1995, ( analyses status of social justice in ancient greece, China, Egpt, India etc.,) Allan Beever, Forgotten Justice - the Forms of Justice in the History of Legal and Political Theory, (Oxford, Oxford University Press, 2013) ( explains historical evolution of social justice in the backdrop of political theories). [xx] Philip S Rubio, A History of Affirmative Action 1619-2000, (Mississipi, University Press of Mississipi , 2001), ( explains the context of affirmative action in USA in the background of slavery and racialism). [xxi] Robert P.Kraynak, The Origins of Social Justice in the Natural Law Philosophy of Antonio Rosmini, 40, 3-29 -For example, Aristotle distributive justice and Kant’s moral philosophy, Hobbes Natural Rights are the classic natural law philosophy relating to social justice. For the brief account of nexus between natural law and social justice, The Review of Politics(No.00, 2018). [xxii] Supra note 1, 2. [xxiii] Supra note 4. [xxiv] Amartya Sen, TheIdea of Justice, (Combridge, Harward University Press, 2013). [xxv] The International Convention on the Elimination of All Forms of Racial Discrimination, 1965,660 UNTS 195 (March 1966), The Convention on the Elimination of All Forms of Discrimination against Women, 1979,G.A. Res.34/180, U.N.Doc.A/34/180 (September 1981), The Convention on the Rights of the Child, 1989, 1577 UNTS 3, G.A. Res.44/25, U.N.Doc. A/44/736 (1989), The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990, 2220 UNTS 3, A/RES/45/158; The Convention on the Rights of Persons with Disabilities, 2006, 2515 UNTS 3, A/RES/61/106. [xxvi] Chris Thornill, social origin of the Constitution, A Sociology of Constitutions - Constitutions and State Legitimacy in Historical - Sociological Perspective . (Cambridge, Cambridge University Press, 2011). [xxvii] Benjamin Cardozo, Nature of Judicial Process , 43, (New Haven : Yale University Press, 1946). [xxviii] S.A. Partha And Ors. v. The State of Mysore And Ors. AIR 1961 Kant 220, AIR 1961. [xxix] M.R.Balaji and Others v. State of Mysore 1963 AIR 649, 1962 SCR Supl. (1) 439. [xxx] K.C.Vasanth Kumar & Another v. State of Karnataka 1985 AIR 1495, 1985 SCR Supl. (1) 352. [xxxi] Indra Sawhney v. Union of India, (1992) Supp. (3) SCC 217 [2]. [xxxii] M.Nagaraj&Ors. v. Union of India & Ors, (2006) 8 SCC 212. [xxxiii] The Constitution (Amendment) Act, 1995. [xxxiv] The Constitution (Amendment) Act, 2000. [xxxv] The Constitution (Amendment) Act, 2000. [xxxvi] The Constitution (Amendment) Act, 2001. [xxxvii] B.K. Pavitra and Ors v. Union of India and Ors (Pavitra II) (2019) 16 SCC 129. [xxxviii] B.K.Pavitra I (2017) 4 SCC 620. [xxxix] Supra note 3. [xl] Art.335 runs as follows: The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. [xli] Prathvi Raj Chauhan v. Union of India & Ors -Writ Petition (C) No.1016 of 2018, decided on 10 February 2020. [xlii] Dr. Subhash Kashinath Mahajan v. The State of Maharashtra (2018) 6 SCC 454 -Sec.18A. (1) For the purposes of this Act, - (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply, (2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court. [xliii] Pravakar Mallick & Anr v. The State of Orissa & Ors -Writ Petition (C) No. 1015 of 2018, decided on 7 April 2020. [xliv] Dr. D.C. Wadhwa & Ors v. State of Bihar &Ors, 1987 AIR 579, 1987 SCR (1) 798. [xlv] Art.123 and Art.213 of Constitution respectively deals with ordinance making power of president of India and governors of the State. [xlvi] The decision of the Court invalidating reservation act 2000 was delivered on 19 February 2017. Immediately after the decision on 22 march 2017 Ratna Prabha Committee was constituted by the government of Karnataka to carry out the mandates of Pavitra I and report was submitted on 5 May 2017. On 26 July 2017 cabinet approved the report and constituted a sub-committee to draft a Bill in line with verdict of the Court. The Cabinet Sub-committee submitted report on 4 August 2017 and on 7 August 2017 report was accepted by the Cabinet. The Bill was passed by both legislative assembly and legislative council respectively on 14 November 2017 and 17 November 2017. The Bill was reserved by the Governor for consideration and it was cleared by the Minister of Home Affairs after getting clarification from the State government. Finally, Bill assented by President on 14 June 2018 and published in the official gazette on 23 June 2018. Though the Bill took more than 1 year 4 months to get converted to statutory status, the speed and zeal with which government of Karnataka acted upon the decision of the Court signifies the commitment of the legislature to uphold social justice and strengthen AP. [xlvii] The State of Panjab & Ors v. Davinder Singh & Ors Civil Appeal No.2317. [xlviii] E.V.Chinnaiah v. State of Punjab and Ors (2005) 1 SCC 394. [xlix] R.M.MacIVER, Society - Its Struture and Changes, Toronto : The Macmillan Company Ltd, 1931. [l]Krishnan P.S. Social Exclusion and Justice in India, 11 (New York: Routledge , 2018). [li] Muir Mills Co., Ltd v. Suti Mills Mazdoor Union, 1955 AIR 170, 1955 SCR (1) 991. [lii] Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governace Court, 8(1), WUGSLR, 1-70, 9, (2009). [liii] State of Madras v. ChampakamDorairajan 1951 AIR 226, 1951 SCR 52. [liv] The Constitution (Ninety-third amendment) Act, 2005. [lv] Union of India v.Virpal Singh Chauhan (1995) 6 SCC 684. [lvi] Ajit Singh Januja v. State of Punjab (1996) 2 SCC 715. [lvii] According to catch up rule if a candidate belonging to SC/ST is promoted to higher post on account of reservation, he is entitled for seniority over a senior candidate belonging the general category candidate in the feeder cadre. Nevertheless, if a senior candidate in feeder cadre belonging to general category promoted to higher post wherein SC/ST is already promoted by virtue of reservation, the earlier promoted SC/ST candidate will be junior to subsequently promoted general category candidate. [lviii] Dr.Subhash Kashinath Mahajan v. The State of Maharashtra & Anr. (2018) 6 SCC 454. [lix] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sec.3 (1) (ix), 3(2) (vi) and 3(2) (vii) [lx] Indian Penal Code, 1860 Sec. 182, Sec.192, Sec.193 and Sec.219. [lxi] Chebrolu Leela Prasad Rao & Ors v. State of A.P. &Ors Civil Appeal No.3609 of 2002, decided on April 22, 2020. [lxii] G.O. Ms. No.3 of 2000. [lxiii] Supra note 32. [lxiv] Supra note 62. [lxv]Hansen, D.T. Exploring the Moral Heart of Teacher, 164,( New York: Teacher College Press, 2001). [lxvi] Garriston, J. & Liston, D. Teaching, Learning and Loving, 32 (New York: Teacher College Press, 2001). [lxvii] Fried, R.L., The Passionate Teacher: A Practical Guide, 1, (Boston, Beacon Press, 2001). [lxviii] Ibid. [lxix] Ibid. [lxx] Ibid. [lxxi] Ibid. [lxxii] Ibid. [lxxiii] Tony Buzan, Social Intelligence- 10 Ways to tap into your Social Genius, Poole, 6, (UK, Buzan Centers Ltd, 2002), -It is a combination quality of listening to people and having a positive attitude towards others, dealing with awkward or embarrassing situations graceful and building good rapport with people. [lxxiv] Supra note 59. [lxxv] Supra note 43. [lxxvi] Supra note 33. [lxxvii] John Dewey, Freedom and Culture , (New York, G.P.Putnam's Sons, 1939).

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Section: D Category: Case Commentary Paper Code: CC-NC-01 Page Number: 458 - 460 Date of Publication: February 10, 2021 Citation: Namrata Chakrabarty, Vineeta Sharma v. Rakesh Sharma, 1, AIJACLA, 458


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