Legal Significance of Public Purpose

(By K.S. Raju, Principal Sub Judge, Kozhikode)

It is quite fashionable to link any matter with public purpose. In common conversations, the term is liberally used by politicians, lawyers, social workers and litigants. But the jurisprudential significance of the tennis irrefragable. The expression public purpose in Art. 31(2) of the Constitution is of very wide import and has to be construed in the light of the Directive Principles of State Policy. Under Art. 39(a) and (b) it is the duty of the State to direct its policy towards securing that the ownership and control of material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment. In State of Bihar v. Kameswar Singh AIR 1952 SC 259 Mahajan J. observed:

'The expression public purpose is not capable of precise definition and has no rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society mid its needs".

Das J. observed:

"We must regard as public purpose all that will be calculated to promote the welfare of the people as envisaged in the Directive Principles of State Policy whatever else that expression may mean".

The concept of public purpose was enunciated and discussed in extenso in the leading case Munn v. Illinois 94 US 113 L-Ed 77 (1877) under the American Constitutional Law. The doctrine declared is that property becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large and from such clothing the right of the Legislature is deduced to control the use of the property and to determine the compensation which the owner may receive for it. Field J. observed as follows:

"The declaration of the Constitution 1870, that private buildings used for public purposes shall be deemed public institutions, does not make them so. The receipt and storage of grain in a building erected by private means for that purpose does not constitute the building a public warehouse. There is no magic in the language though used in a constitutional convention, which can change a private business into a public one or alter the character of the building in which the business is transacted, and it was a strange notion that by calling them so they would be brought under legislative control".

Under the American Constitution the power to acquire private property for public purpose is called Eminent domain. The purposes for which the right of appropriation may be exercised must be determined by the needs of the Governemnf and must be declared by law. No Government can under any circumstance divert one citizen of his estate for the benefit of another, if in no way the public interest is involved. It is nor indispensably necessary that it be made for the State or the Nation itself. What is necessary is that the appropriation must be made for some public use.

In India, Kameswar Singh case (supra), the Bihar Land Reforms Act, 1950 was impugned at first on the ground of colourable exercise of power and when the Constitution First Amendment Act 1951 was passed, this ground disappeared. Then it was contended that the Act was not enacted for a public purpose. The Court held that the requirement of public purpose was involved in the very concept of acquisition. Mahajan, J. reiterated that the Bihar Land Reforms Act, 1950 intended to bring about a reform in the arena of land distribution system of Bihar for the general benefit of the community and hence, Act was passed for a public purpose.

The vague phrase 'public-purpose' cannot be defined better than in the words of Mr. Justice Batchelor which has become the Locus-Classicus on the subject. In Hamabai v. Secretary of State 1911 BLR 1097 it was held that the phrase public purpose whatever else it may mean must include a purpose, that is an object or aim in which the general interest of the community as opposed to the particular interest of individuals is directly and virtually concerned. In Haidaibax Razyi v. State of Gujarat AIR 1971 Guj. 158 at 160 the view taken is that the basic concept underlying the expression public purpose is general interest of the community. But in Alagappa Chettiar v. Revenue Divisional Officer AIR 1969 Mad. 183 at 186 it was held that the expression public purpose may include a purpose in which the general interest of the community as opposed to the particular interest of the individuals, is directly and virtually concerned. This decision was based on the dictum in Somawanti v. State of Punjab & Ors. AIR 1963 SC 151 wherein Madholkar, J. observed as follows:

"The term 'public purpose' is an inclusive and not a compendious one and therefore, does not assist us very much in ascertaining the ambit of the expression "public purpose'. Broadly speaking the expression public purpose would however include a purpose in which the general interest of the community as opposed to the particular interest of the individuals is directly and virtually concerned".

Before the 44th Amendment of the Constitution, it was a violation of the fundamental right, if the land had not been acquired for a public purpose. The 44th Amendment removed tire right to property from the Chapter on Fundamental Rights (It is to be noted that the 44th amendment was without eliciting public opinion and without scrutiny by the Select Committee). After deleting Arts. 19(1)(f) and 31, the property right was inserted in Part XII Chap. TV (Art. 300 A - No person shall be deprived of his property save by authority of law). After the 44th Amendment, the first question which arose for consideration was whether the property amendment would violate the basic structure enunciated in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.

In a catena of decisions namely Indira Nehru Gandhi v. Raj Narain - AIR 1975 SC 2299, Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, Waman Rao v. Union of India AIR 1981 SC 271, the doctrine of basic structure was upheld. It was also held that Art.19(1)(f) and Art.31(2) were mutually exclusive. Formerly Entry 36 in List I dealt with acquisition or requisitioning of property for the public purpose of the Union. Entry 36 List II dealt with acquisition or requisitioning of property, except for the purposes of the Union subject to the provisions of Entry 42 of List III and Entry 42 List III dealt with principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other public purpose is to be determined and given. These entries were deleted by the 7th Amendment which came into force from 1.11.1956 and new Entry 42 was substituted in List III - Acquisition and Requisitioning of property. Thus, it can be seen that public purpose is the touchstone of both acquisition and requisitioning of property.

The scope and ambit of public purpose cannot be put in water tight compartments. When public purpose is to be seemed through private agency then there is nothing to prevent the government from acquiring it and direct (he private agency to pay the compensation. If the Legislature by a statute declares a particular purpose to be a public purpose, men out of respect of the Legislature, the courts of law may accept it. In acquisition cases, what is the public purpose has to be decided by the Government and the courts of law have no say in this matter.

In Ram Narain Singh & Ors. v. The State of Bihar and Ors. AIR 1978 Pat. 136 relying on the rule in AIR 1963 SC 151 it was held that even though the acquisition of land is for a private concern whose sole aim may be to make profit, if the intended acquisition of land could materially help the national economy or the promotion of public health or the furtherance of the general welfare of the community or something of the like, the acquisition will be deemed to be for a public purpose. In Forane Church v. State of Kerala & Ors. AIR 1971 Ker. 143 the view taken was that if the individuals are benefitted not as individuals but in furtherance of a scheme of public utility, the purpose is a public purpose.

In State of Bombay v. All Gulshan 1955 Bom. 810 the dictum is that acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a public purpose, though it will not be strictly be a State or Union purpose.

In the State of Kerala the past and prospective (rends in the concept of public purpose was discussed in extenso in Mohammed Noohu v. State of Kerala 1952 KLT 498. The observations run as follows:

"There was the older and stricter view that unless the property acquired was dedicated for the use of the public at large or a considerable section thereof, it would be a public use (Vide Nichols in Eminent Domain 1950 Vol. Ill P. 430). But the modern and more liberal view is that it is not an essential condition of public use that the property should be transferred to public ownership or for public uses and that it would be sufficient if the public desires advantage from the scheme. According to the latter view it is no objection to the validity of an acquisition that it is in favour of a private corporation or of individual provided the acquisition results in public advantage. Thus, the acquisition of land to meet the requirement of the school for a larger site area in view of its expanding activities to meet the growing educational needs of the locality was for a public purpose.

In Khandelwal v. U.P. AIR 1955 All. 12, it was held that in India the concept of public purpose is understood as a purpose useful to the public rather than a purpose used by the public. The rationes of the decisions reported in State of Bihar v. Kameswar Singh AIR 1952SC 252, Surya Pal Singh v. State of U.P. 1952 SCR 1056. Thambiran Padayachi v. State of Madras AIR 1952 Mad. 756, State of Bombay v. Bhanji Munji 1955 SLR 777, Moosa v. State of Kerala AIR 1960 Ker. 355 and Safi v. State of West Bengal AIR 1951 Cal. 97 are to the effect that Laws carrying out general scheme of social reform are for public purpose.

The dominant question which arises for consideration is whether the power of the State to decide public purpose can be so rigid so as to exclude judicial review. In Renjith Thakur v. Union of India AIR 1987 SC 2386, the Court observed:

"The doctrine of proportionality as part of the concept of judicial review would ensure that even on an aspect, which is the exclusive province of the Court Martial ...irrationality and perversity are recognised grounds of judicial review".

It cannot be refuted that the scope of judicial review is very wide, The three grounds justifying judicial review are illegality, irrationality and procedural irregularity. The Hon 'ble High Court of Kerala in Ramoo Ammal & Ors. v. State of Kerala & On. 1991 (1) KLJ 740 held that irrationality in public purpose is a ground for judicial review. So, it cannot be found that the power to decide public purpose by the State is an unfettered one.

In acquisition cases, in order to ascertain public purpose the proper approach is to take the scheme as a whole and then examine whether the entire scheme of acquisition is for a public purpose. In each case, all the facts and circumstances require to be closely examined in order to determine whether there is a public purpose. In each case, what is to be determined is whether the acquisition is in the general interest of the community as distinguished from the private interests of an individual. In State of Karnataka v. Renganatha Reddy AIR 1978 SC 215, the Supreme Court observed:

"The intention of the Legislature has to be gathered mainly from the statement of objects and reasons of the Act and its Preamble, The matter has to be examined with reference to the various provisions of the Act, its content and set up, the purpose of acquisition has to be called out therefrom and then it has to be judged whether it is for a public purpose within the meaning of Art. 31(2) and die Law providing for such acquisition".

The terms public purpose and public interst are rather confounding. Prima facie both terms look synonymous. In M/s. J. Mahopatra & Co. v. State of Orissa AIR 1984 SC 1572 it was held that in the case of public interest litigations it is not necessary that the petitioner should himself have a personal interest in the matter. In Bandhua Mukil Morcha v. Union of India AIR 1984 SC 802 at 811 the Hon'ble Supreme Court held that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community. So it can be seen that the term public purpose is based on the principle of public utility or usefulness but public interest in public interest litigations is based on the principle of dispensation of justice to the weaker or vulnerable section of the community.

More recently in Laxman Rao Bapurao Jadhava & Anr. v. State of Maharashtra & Ors. AIR 1997 SC 334 a Division Bench consisting of Their Lordships K. Ramaswamy & G.B. Pattanaik JJ. took the view that acquisition cannot be quashed on the ground that the authorised officer has not satisfied himself that land was needed for a public purpose. On a consideration and contemplation of the above dictum, I come to the conclusion that public purpose is a part and parcel of sovereignty and therefore, the State can acquire private property even without a public purpose.

In Defence of Lawyer Notice

Notice of demand under Section 138(b) of the Negotiable Instruments Act

given by Advocate is valid - Reply to the Journal 1997 (2) KLT- 28 to 30

(By S.K. Tampi, Advocate, Tripunithura)

The doubt and technical lacunae pointed out by Advocate Joseph Thattacherry, Changanacherry regarding the validity of notice served by Advocate on behalf of payee or holder in due course is not to be taken as a mandatory in law of notices. The argument advanced is that the omission of word anybody or on his behalf is a serious omission itself. With due respect to his view it can be opined it is not so. The omission has not defeated intention of the legislature in amending the Negotiable Instruments Act 1881 with insertion of Chapter XVII in the said Act. No doubt that notice is mandatory when there is dishonour of cheques due to insufficiency of funds or other reason mentioned in the Cheque Returned Memo, as provided in S.138(c) read along with S.142(b) of the Act, where as in Chapter VII of the Negotiable Instruments Act S.94 it is specifically stated that, notice of dishonour may be in oral or written be sent by post and may be in any form; but it must only inform the party to whom it is given either in express terms and reasonable intendment that the instrument is dishonoured. Therefore the intention of the legislature though not made clear in S.138 (c) and 142 (b) the word reasonable intendment is deliberately inserted by legislature in S.94 of the Negotiable Instruments Act to say that notice may be in any form and therefore subsequent omission of anybody or on his behalf had not defeated the purpose of legislature and it is not mandatory to do otherwise.

And in 1991 KLT 65 the interpretation of S.138 is Clearly deat, the object of the section is only to make the drawer of the subject to penalty when the cheque is bounced for reasons mentioned therein. And it has to be remembered till the cheque is returned unpaid no offence under S.138 is made out.

To conclude there is absolutely no reason as to why the advocate shall prepare a notice of demand in the name of the payee or holder-in-due course himself and ask him to sign and sent it, when the Advocate himself can use the word under instruction from, or on behalf of etc. without violating any of principles of law.

Abolish C.A.T. - Sooner the Better

(By K. Srinivasan Nair, Former Judicial Officer and Addl. Director of Public Prosecutions)

It was reported that recommendation have been made by a High Level Committee to abolish the Central Administrative Tribunal (C.A.T.). This is a realistic and most essential step, and the recommendations have not come a day too late.

The Tribunal which was established as an alternative forum of the High Court, to deliver speedy justice has not only defeated the purpose for which it was created, but has also turned counter productive, becoming a curse on the tax payer, and the litigant who comes before the Tribunal.

The High Courts with heavy work loads, took a very long time to adjudicate cases of Government employees, who were involved in the task of running the administration. Hence, the Tribunal was established to bring cheap and speedy justice to the employees. But it has miserably failed in this task, moving at snailspace. News papers report that there are about 48000 cases pending adjudication. Even for admitting cases many adjournments are made and final disposals are even slower. Thus the prime object of delivering quick justice has been defeated by the Tribunal itself. What is more, greater del ay is now caused in adjudication of cases by reason of the existence of the Tribunal, The Tribunals are now not substitutes, but subordinate to the High Courts and decisions of the Tribunals can, hence, be challenged before the High Courts. The decision in Chandrakumar case, AIR 1997 Supreme Court P.1125 makes this abundantly clear. Thus a case which will be finally decided by the High Court, say, in five years will now take ten years, as the Tribunal also may take another five years. By adding one more tyre to the system, more delay is caused, in addition to avoidable expenses to the litigant and the State. In these days, when cheap justice is aimed at, why should the poor litigant spend money in the Tribunal and later in the High Court? Why should the State exchequer be depleted by spending huge amounts for paying salaries and incurring other expenses like huge rents, maintenance of cars etc. for the sheer retention of C.A.T.s? It is believed that the Vice Chairman, who are now in the position of District Judges, are paid the salaries and perks of High Court Judges. This is a criminal waste of tax payers money, which can be spent more usefully in other ways. It will also demoralise regular District Judges, who do much more work, and are paid much less. This is a very unhealthy situation for the judiciary and State.

Qualitatively also, the performance of the Tribunals has come in for strong criticism of the Supreme Court in several reported cases, for example (1996) 3 SCC 158. The fact that many groups of employees like Bank employees. Insurance employees. Port Trust employees and other PSU employees have chosen not to go before the C.A.T. shows that even the aggrieved litigants would prefer to steer clear of the C.A.T.

It also appears that those on the top of the C.A.T. prefer to spend much time, travelling to different States in the country and hearing cases, while there is more than enough judicial and administrative work to do at the Head Quarters.

Unlike in the High Court, the functionaries are in three levels. The Chairman holds a high rank with no equal, Vice Chairman and members holding two different lower levels. But when a very important case like the Cabinet Secretary's case came up, was the Chairman available to hear it? We have seen the quality of the decision by the CAT.

The Government of India must take expeditious action to wind up this white elephant, and save the employees from delay, by leaving them to seek redress from the High Courts as before, also avoiding substantial expenses at the C.A.T.

Issac Ninan's Case : A Critique

(By Kalesswaram Raj, Advocate, Centre for Legal Studies, Payyannur)

The decision rendered by the Division Bench of our High Court in Issac Ninan v. State of Kerala (1995 (2) KLT 848), would call for serious discussions from the social, economic and legal points of view. Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter called as 'the Act', are held to be "unjust and unreasonable as they offend Article 14 of the constitution". Thus the impugned provisions were held to be unconstitutional and void by their Lordships.

First of all, with due respect, it is submitted that although the decision takes into account the sorry side of the concept of fair rent fixation, it ignores the other side of the coin and as a result, the possible socio economic consequences of an abrupt expulsion of the impugned provisions were not be examined in its totality. No doubt, our prudence would only agree when it is said that the method of determination of fair rent in the Act is unreasonable and even unfair. But the method of determination even if unjust, would not have been taken as a ground to negate the very concept of fair rent. The concept of fair rent, as different and distinct from its mode of computation, ought to have been taken as a socio economic dictum attempted to be maintained by the operation of law. It would appear that such a distinction was not drawn in Issac Ninan. The result would invite more complicated socio economic questions. Once Sections 5, 6 and 8 are expunged from the statute book, it is obvious that the landlords on the other hand would be more equipped to enhance the rent on their own options and desires, as many times as possible, without being controlled by any law or law courts. This can precisely lead to two kinds of consequences - (1) unreasonable and uncontrolled evictions leading to grave socio economic unsafety and uncertainty. (2) An enhanced and indirect tax on the general public as a result of the situation in which the tenants are constrained to withstand the uncontrolled enhancement of rent by enhancing the price of the goods sold, manufactured or service rendered to the common people. So it is politely submitted that instead of a total cancellation of the provisions, a scientific modification in the method of determination of fair rent without opposing the sociological jurisprudence involved therein would have been more impressive.

Secondly, it is submitted that a similar decision rendered by Andhra Pradesh High Court in Mohd. Atur Rahman (died) represented by his Legal Representatives v. Mohd Kamaluddin Ahmed and Another, 1987 (2) RCR 254 could not stand for long on account of a subsequent judgment by the Supreme Court. In Mohd. Atur Rahman's case the reasonableness and constitutionality of Section 4 of the A.P. Buildings (Lease, Rent and Eviction) Act, 1960 was placed before the single Bench of A P High Court. Section4 of the A P Act, is almost analogical to but more stingent than section 5 of our Act, in as much as the said section also envisages the fixation of fair rent on the basis of the rent prevailing in the locality in 1944 with permissible marginal increase. In the above quoted decision, His Lordship Justice P. Rama Rao held that the section is arbitrary and unconstitutional and violative of Article 14 of the constitution. But in Sant Lai Bharati v. State of Punjab (1988 (1) RCR 394 SC : AIR 1988 SC 485) the equivalent provision in East Punjab Urban Rent Restriction Act (Section 4 of Act 3 of 1949) which contemplates the fixation of fair rent on the basis of rate in 1938 was held to be not unreasonable by the Supreme Court. The apex court also refused to declare the impugned section as unreasonable or unconstitutional. Interestingly the constitutionality and reasonableness of fair rent again came up before the Andhra Pradesh High Court in Suresh Gir v. X. Sahadev (1944 (2) RCR 664). In this case relying on the view expressed by the apex court in Sant Lal Bharati's case (supra), the A P High Court itself held that the law laid down by the same court in Mohd. Kamaluddin's case (1987 (2) RCR 254 Supra) was not good law. It is respectfully submitted that this interesting precedential background does not find a reference in Issac Ninan's case. So, in an application for fixation of fair rent when comes up for hearing before the rent controller, the temptation of Sant Lai Bharati cannot be overlooked, despite the decision in Issac Ninan.

Reservation - A Boon or A Doom?

(BY Reeba Elizabeth Chacko, II Year LL.B, National Law School, Bangalore)

India is a land of multiplicities. Cultural, religious and linguistic pluralism is the hall mark of our national identity. This being the case, to protect the interests of people belonging to all communities irrespective of their caste, creed, religion, region, language, custom or sex, becomes, not a very easy task. It is but natural that in such a land of diversities, at least a part of the population belong to minority communities. There is little difference in the case of our nation too. Indian population comprises of a large number of minority communities, especially, religious & linguistic minorities. And there will not be a voice of dissent, when one says that most of these minorities have been backward socially, educationally and economically. The reasons for the same could be cultural, historical or social. Undoubtedly, to bring about equality among such unequals is not an easy task at all.

Article 14 of the-Constitution of India guarantees the right to equality to all citizens of the nation. However, treating unequals equally is not what is intended! This has been amply taken care of by the fathers of our Constitution. Although Articles 15 & 16 clearly prohibit any kind of discrimination whether in education or employment on the basis of religion, race, caste, sex etc. it is further provided that nothing shall prevent the State from making any special provisions for women & children (Art. 15 (3)) or for the advancement of socially & educationally backward classes of citizens or for the scheduled castes & the scheduled tribes (Articles 15(4) & 16(4)). These provisions were added to our Constitution after long drawn deliberations in the Constituent Assembly.

A glimpse through the Constituent Assembly Debates gives a very clear picture of the views and opinions of the various majority & minority communities expressed through their respective representatives in the Advisory Committee on Minorities in the Constituent Assembly, on the said issue. A few representatives had expressed their fear that under any future Constitution of India by which majority rule will be established, there can be no shadow of doubt that the majority rule will be the rule of the Orthodox Hindus, that there is a great danger of that majority with its Orthodox Hindu beliefs & prejudices contravening the dictates of justice, equality and good conscience, that there is a great danger that the minorities may be discriminated against either in legislation or administration or in the other public rights of citizenship and therefore, it is necessary to safeguard the position of the minorities in such manner, that the discrimination which is feared shall not take place. Further, they demanded that it is not sufficient that these minorities and backward classes be merely provided with rights, but if these declarations of rights are not to be mere pious pronouncements, but are to be realities of everyday life, they should be protected by adequate pains & penalties from interference in the enjoyment of these declared rights. In the light of their past experiences and their existing socio-economic situation, these communities may be perfectly justified in making such demands. The committee by an absolute majority acceded to these demands. It would be most interesting to note that many of the representatives of these minority communities themselves were satisfied with such provisions for equal opportunities to all* to be guaranteed by the Constitution and even made it clear that they did not want any further special preferential treatment over the majority. And this approach of theirs was widely appreciated by all other members in the Constituent Assembly. The Parsi Community is one such minority community who were totally against any kind of reservations for them and yet, today they are in the forefront of Indian Economy after forty eight years of independence.

The Constituent Assembly however decided to give some privileges to the minorities and the backward classes, keeping in view their socio-economic and cultural background, so as to enable them to come up to the level of the general community and to compete with them as equals. It was with this object in mind that the concept of 'reservation;' was given birth to. But the Constitution makers made it amply clear that such kind of 'reverse discrimination' should continue only for a period of ten years after the commencement of our Constitution. It was intended that the said object should be achieved within this period, after which all citizens of the country should be treated equally, so that they would compete in a common category. However, by the sixty second amendment to the Constitution, the Indian Parliament extended this time period to fifty years. The so-called elected representatives of the people seated in the Parliament House seem to be confident of achieving the same goal with fifty years which our Constitution makers sought to attain in ten years, but failed (which might have inspired the Parliament to make the 62nd amendment).

With just five more years to go to complete this fifty year period prescribed by the Parliament, the time has come for retrospection. It would be most relevant to ponder upon some of the issues related to this much-talked of 'phenomenon' of 'reservation'. What has been the Government policy of reservation over the last forty five years? How effective has it been in achieving the so-called objective of emancipation of the backward classes and the minorities? In other words, are we on the right track? Along with the legislatures, the Supreme Court of India has also played a very important role in defining the limits of such reservations whether it be in education or in employment. The Supreme Court, in the cases of State of A.P. v. Balram (AIR 1972 SC. 1375) and Rajendran v. Union of India (AIR 1968 SC. 507) held that reservation should not exceed legitimate limits and that in making special provisions for the weaker sections for higher education, the State cannot weaken standards of education or lower the efficiency of scholars to the detriment of national interests. In Balaji v. State of Mysore (AIR 1963 SC. 649), the Supreme Court held that reservation in excess of 50% of the available seats would be invalid. In the recent case of Indra Sawhney v. Union of India (AIR 1973 SC. 477) a nine-judge bench of the Supreme Court laid down the 'creamy layer' principle, according to which the economically well-off category among the backward classes are not to enjoy the benefits of reservation. This highly rationalistic and progressive approach of the Supreme Court in the matter of reservations is, undoubtedly, commendable. At the same time, one cannot overlook some of the self-projecting drawbacks and mistakes made by the highest court of the country. However, the more important question is, how far are these principles reflected in practice, in the policies of the various Government and how effective have they been. It should be noted that the Kerala Government is facing contempt of Court proceedings in the Supreme Court, for contravening the 'creamy layer rule' in one of its legislations.

Any view or opinion on reservations would be meaningless without a glance of the Mandal Commission Report which has been accepted with slight modifications. The Mandal Commission Report, among other things, advocated a reservation of 27% for the socially and educationally backward classes in government services, public sector enterprises and private sector enterprises receiving any kind of financial support from the government. Besides, promotion in jobs and admission to colleges were to be covered by reservations. However, recently the Supreme Court has rightly ruled out any reservation in promotions. The apex court "ought to be appreciated for its slow but steady movement in the right direction, for, it seems to have finally realised the need of the hour. Caste was to be the criterion to determine the backward classes. Unfortunately reservations became a political weapon in the hands of political parties to serve their vested political interests. Each of them attempted to project themselves as the champions of the backward classes and, for this, they used the mascot of Mandal. The story began, with the Janata Dal Government headed by Mr. V.P. Singh creating a political havoc over the implementation of the Mandal Commission recommendations and finally toppling itself following the widespread violence and agitation by the youth. One cannot forget the incomparable sensation created by the abortive attempt to self-immolation by Rajiv Goswami in Delhi. Following this, the Narasimha Rao Government too hardly wanted to miss the opportunity of projecting itself as the champion when it was asked by the Supreme Court to make its stand clear on the reservation issue. The decision of the new Government was to modify the V.P. Singh Government's notification by making economic criterion as the basis of the 27% reservation instead of the lone caste criterion. It was also decided to reserve 10% more jobs for the poor among the forward classes and this decision was supported by the Bharatiya Janata Party and the CPI (M). This infuriated the Janata Dal which found itself deprived of its claim of being the sole champion of the backward classes. In addition to this, with the above modification, the total percentage of jobs reserved for various groups has crossed 60%. The political motivation behind the stand taken by every political party is amply clear. Each of them is seen to be acting with its eyes on the vote bank, totally ignoring the great damage it has been doing to the cause of social justice. What they have done through their actions is that they have ignited a process of dividing society on the basis of caste, when, on the other hand, we are striving towards freeing ourselves from the caste stranglehold. Reservation has slowly emerged as a new weapon that is creating divisive forces and hence raising a threat to our national unity.

In the guise of emancipating the backward classes, the relevance of efficiency, competence and merit is being undermined. It is but natural that there would be raising disenchantment and disgruntlement amongst those not belonging to the backward classes, when they see that, while brilliant and intelligent persons are being pushed to the shadow, mediocre and incompetent persons are being chosen only because they have been born into a caste that has been categorised as backward, the only crime committed by the deprived being their birth. This is never to be mistaken for any hint that mediocricity and incompetence are typical of particular classes. Besides, there is no all-India list for backward classes and the State Government have been permitted to use their own criteria in drawing up their lists. Several States has reserved upto 70% or even more of government services for the backward classes. It would be interesting to note, that the Karnataka legislature, in a certain legislation, created several categories of backward classes like backward, more backward, most backward, less backward and so on. All that seems to prevent our policy makers from creating further categories of backward classes is probably their inability to find more words indicating degrees of comparison. One fails to recognise either the fine line of distinction between such categories or the possibility of its existence. The prospects of material advancement through job reservations have led to a competition among castes for 'backwardness'. There is many a group trying hard to bring itself under the head of backward classes so as to enjoy the benefits of job reservation. The case of the powerful Lingayats of Karnataka who had first been excluded from the State list of backward classes and had later to be accommodated is well known. Again, although the Supreme Court has laid down the 'creamy layer rule', there is a vacuum when it comes to the guidelines to determine this 'creamy layer' within a backward class, as a result of such State legislatures have been taking liberties in determining the income level of individuals who may enjoy the benefits of job reservations. Recently, the Supreme Court had to strike down a Bihar U.P. legislation for its impermissibly high income-level prescribed for the same.

The harm caused to our country and our people by this ghost of reservations does not end here. It is well-known that our education system today is being infected by a new disease, that of capitation fees. Gone are the days when one was needed to prove one's merit in securing a seat in a professional course or any other course for that matter. On the other hand, one can acquire an M.B.B.S. or Engineering degree if one has the money to pay lakhs as capitation fees. Although in theory, it has been prohibited by the Supreme Court, its continuance in practice is an open secret. The cause for this too may be traced back to the same root viz. reservations. The reason is simple. The characterization has given birth to two categories. There is one category of candidates who are not required to satisfy the stringent standards of merit. In admission to educational institutions, the qualifying score is lesser for candidates from this reserved category. One may even find a college, where all that one has to do in order to secure an admission is to prove oneself to be belonging to reserved category and then merely appearing in the entrance examination. On the other hand, candidates in the other category are required to secure amazingly high scores so as to get selected through merit in colleges. Naturally students in this category who fail to clear entrance tests will feel bitter against those who secure admission with lesser scores and they resort to paying high capitation fees, whether they can afford it or not, just to secure admission in colleges. Many others, mainly the economically well off among them prefer to go abroad for higher studies, precipitating what we call 'brain drain'. It is our own economy that suffers with the loss of its talents because of its failure to provide adequate opportunities to them within the country. The greater heights of progress to which our country could possibly be led by a proper utilisation of our human resources is beyond our imagination. With the sword of reservations on our necks, such human resources utilisation is almost an impossibility.

The basic objective behind this policy of reservations is to raise the backward classes to the level of the general community and thus to enable them to compete with them as equals. Paradoxically, instead of pulling them up to the general level, in my view, the reservation policy is only pushing them still further down. The fact that the number of selected candidates from the backward classes in the open merit list in an entrance examination is only decreasing after the reservation policy has been implemented, is ample proof of this. And, interestingly, this is the justification given by the pro-reservationist for reserving seats for backward classes in jobs and educational institution. Practically, what happens is that, when a candidate belonging to a reserved category is assured of a seat in an educational institution or a job, merely by appearing in the entrance test or by securing just a negligible minimum, by virtue of his being a member of a backward class, there is hardly any incentive for him to work harder so as prove himself to be meritorious enough to secure a place in the general merit category. Thus, in terms of competence and merit, there is stagnation, if not deterioration, as a result of the reservation policy and ultimately what suffers is the quality arid general standards of our human resources. In short, the reservation policy, is not serving, and will not serve, its purpose, but only acts as a fetter to national development.

There is little exaggeration when I say that even with respect to appointment of judges, there is a "de-facto reservation". When a Muslim judge retires from service, all efforts are made to appoint another Muslim judge. Similarly, conscious efforts are also made to ensure that atleast one judge belonging to the backward class is part of judiciary in a State. Ail these are nothing but the dirty political tactics of the party in power to build their vote banks by appearing different communities in whatever way possible. Should this be allowed? There is absolutely nothing wrong if any competent person is appointed as a judge irrespective of whether he belongs to a forward class or a backward class. However, it would be a tragedy, if we bring in the class criterion and such 'de fact reservation' even in the judiciary of the nation, which has the sacred responsibility of upholding our Constitution and ensuring justice to all its citizens, for which is required a competent and efficient army of men and women, persons of high integrity in public life and those who can do justice to the public faith in the judicial system of the country. What I suggest is an amendment of our Constitution expressly prohibiting any kind .of reservations, even any 'de facto reservation', especially in such areas of supreme importance.

This is not to be mistaken for an anti-backward classes propaganda. What is being criticised is only the means which are being adopted for the purpose of emancipation of the backward classes, as irrational, unscientific and discriminatory. Undoubtedly, there is a need to uplift those groups of people who are socially and educationally backward today due to several socio-economic and historical factors. However, it would be a crime against humanity itself, if we divide society once again on the basis of caste. They are to be given an honourable place in society not by crude methods of reservations, but by more effective alternate means by which they may equip themselves so as to be enabled to compete with the rest, by virtue of their .merit and competence alone.

A combined reading of the Directive Principle of State Policy which requires the State to strive towards a welfare State Article 38) and the fundamental duty which requires every citizen "to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement" (Article 51A (J)), warrants that we should have a system which ensures that competence and merit are never neglected, and which attempts to equip ail persons belonging to all communities, with the required merit and talent, so as to enable them to compete with the general community. This cannot be achieved through reservations, but through other more effective means of providing infrastructure facilities to all citizens, and perhaps even providing special circumstances so that the backward classes are never deprived of the same.

It is time our policy makers realised that the need of the hour is to launch vigorous social and economic schemes to get rid of the weaknesses suffered by the backward classes by setting up institutions, where massive efforts should be made to help them to raise their status. Long term measures to build infrastructures facilities like housing, electricity etc. would be more beneficial to the deprived classes. Proper social, economic and political measures would definitely achieve much more than reservations. For example, equipping a backward class family by helping the adults of the family to ensure self employment through various Government schemes, imparting education and information through social workers, providing other schemes to give them facilities of good housing, sanitation, electricity, water and other essential commodities would be much more useful and meaningful, than reserving jobs for them or seats in colleges for their children. If they are provided with such a healthy and desirable environment, the time is not far ahead before they would definitely be meritorious enough to compete with the general community. What is most important is that such a policy would serve a twin purpose. Not only will it help in the emancipation of the backward classes, but also will avoid any inconvenience or deprivation to the forward classes, which is caused by the reservation policy. The widespread bitterness, virulence and disenchantment that have infected the forward communities in our society as a result of this reservation policy can be done away with. The primary task is to take account of the needs of individuals, rather than groups. It should be remembered that merit is an attribute of individuals, not of castes. It is foolish to think that being born a Brahmin is itself a mark of merit. It is still more foolish to strengthen caste identities through reservations for equalisation of all castes, as that would do nothing but sow the seeds of disunity in society. Unfortunately our policy makers are so blessed with 'reservations', perhaps for political reasons, that they refuse to even give a thought in any alternate directions. Reservations may probably be a temporary solution to the problem of backwardness of certain groups and that too at the cost of the general interests of others and national interests. But., is it not better to teach a man how to fish, rather than give him a meal's fish? Finally, going back to the basic question involved here. Reservation - a boon or a doom? My answer to this question is clear. It is a DOOM.