Is ‘Stare Decisis’ a Taboo on The Single Bench?

(By P. Chandrasekhar, Advocate, Ernakulam.)

‘Stare decisis’is abbreviation of Latin phrase ‘stare decisis et non quieta movere’ meaning that ‘to stand by decisions and not to disturb settled matters”. Till London Street Tramways v. London County Council  ((1898) AC 375), House of Lords in England was not bound by its own decision. After London Street Tramways case, once the House of Lords had given a ruling on a point of law, the matter was closed unless and until Parliament made a change by statute. On 26th July 1966 Lord Gardiner L.C. on his behalf and on behalf of other Law Lords said that ‘too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law’ and that ‘they propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so’ ((1966) 3 All.E.R. 77). The House of Lords has, thereafter, over a number of years, laid down various criteria in the matter of the Practice Statement of 1966 which have been summarized by Dr. Alan Patterson (Dr. Allan Paterson; Law Lords). A constitution bench of the Supreme Court inUnion of India v. Raghubir Singh ((1989) 2 SCC 754)  referred to the criteria as follows:

1. The freedom granted by the 1966 Practice Statement ought to be exercised sparingly;

2. A decision ought not to be overruled if to do so would upset the legitimate expectations of the people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision;

3.A decision concerning questions of constructions of statutes or other documents ought not to be overruled except in rare and exceptional cases;

4. A decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequences of departing from it;

5. A decision ought not to be over ruled if to do so would involve a change that ought to be part of comprehensive reform of the law;

6. In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step;

7. A decision ought not to be overruled if it causes such great uncertainty in practice that the parties’ advisers are unable to give any clear indication as to what the courts will hold the law to be;

8. A decision ought to be overruled if in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy.

In Raghubir Singh’s case the Supreme Court observed that ‘in order to promote consistency and certainty in the law laid down by the superior court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law’ but ‘having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the court should sit in divisions’. The Supreme Court also said that ‘it is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved’ that the statement of the law by a Division Bench is considered binding on Division Bench of the same or less number of Judges. It has also been pointed out that this principle had been followed in India by several generations of judges. Referring to an earlier decision in State of Bombay v. United Motors (AIR 1953 SC 1069) the Court held that if the previous decision was patently erroneous’ there was a duty on court to say so and not to perpetuate the mistake. The Court also referred to Bengal Immunity Company Ltd. v. State of Bihar (AIR 1955 SC 661) wherein the Supreme Court held that one instance where overruling is permissible is a ‘situation where contextual values giving birth to the earlier view had altered substantially’. In Lt. Col. Khajoor Singh v. Union of India (AIR 1961 SC 532) Supreme Court held that if there was fair amount of unanimity that the earlier decision was manifestly wrong departure from earlier interpretation was permissible. In Keshav Mills Co. Ltd. v. C.I.T.(AIR 1965 SC 1636) Supreme Court said that ‘revision of earlier decision would be justified if there were compelling and substantial reasons to do so’. In other words, the Supreme Court has adopted the view of Justice Brandeis in State of Washington v. Dawson & Co. (264 US 393) that stare decisis is ‘not a universal, inexorable command’.

In Central Board of Dawoodi Bohra Community v. State of Maharashtra  (2005 (1) KLT 486 (SC)) a Constitution Bench of the Supreme Court referred to Raghubir Singh’s case and held that what was held in Raghubir Singh’s case was that being highest court of the country, it was open for the Supreme Court not to feel bound by its own previous decisions because if that was not permitted the march of judge-made law and the development of constitutional jurisprudence would come to a stand still. In Dawoodi Bohra Community case the Supreme Court summed up the legal position as follows:

1. The law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength;

2. A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum.

3. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration.

In so far as High Court is concerned the application of rule of stare decisis is two fold. Law laid down by a Bench of larger strength of the High Court is binding on subsequent Bench of lesser or coequal strength. When a court binds itself the rule is called ‘horizontal stare decisis’. When a court is bound by a precedent of a higher court it is called ‘vertical stare decisis’. A high court is bound by a law declared by the Supreme Court by way of rule of ‘vertical stare decisis’ which is embodied in Article 141 of the Constitution of India.

In Peter v. Sara (2006 (4) KLT 219) the Full Bench was concerned with two major legal questions. One related to the nature of proceedings before Family Court under S.125 of the Code of Criminal Procedure, 1973 (Cr.P.C), and the other was regarding Court fee payable in appeals to the High Court under Land Acquisition Act against awards of civil courts in Land Acquisition references. The matters had been placed before the Full Bench as directed by the Chief Justice at the instance of the learned Single Judge. The Full Bench in Peter’s case has held that the references in the cases before the Full Bench were ‘incompetent since there were binding Full Bench and Division Bench decisions on all the points in the order of reference’. The Full Bench also held that ‘only in limited circumstances and that too stating reasons thereof, a reference is competent to the Division Bench’ and that ‘except in such a situation, Single Bench is normally bound by the decision of another single Bench and definitely bound by the Division Bench and Larger Bench decisions of the same court.’ The Full Bench quoted Benjamin Cardozo and said that ‘adherence to precedent should be the rule and not the exception’.

‘Horizontal stare decisis’ is a rule of practice. It does not find place any where in the Constitution of India. There is no constitutional or legal provision that High Court is bound by its own decision. But for the rule of ‘stare decisis’ the High Court would not be bound by its own previous decision. However, the doctrine of binding precedent has been evolved by the Court to promote certainty and consistency in judicial decision. As pointed by the Supreme Court in Raghubir Singh’s case the question is not whether the Court is bound by its own previous decisions but the question is under what circumstances and within what limits should the Court overturn its own pronouncements. Neither the Kerala High Court Act nor any Rule framed there under stipulates that Full Bench shall consist of three or more judges. What should be the quorum of the Full Bench, as a rule of practice, is a matter left to the Chief Justice, who is the master of the roster. As held by the Constitution Bench of the Supreme Court in Dawoodi Bohra Community case it is not improper for a bench of a lesser quorum to doubt the decision of a larger quorum and invite the attention of the Chief Justice and request the Chief Justice to place the matter before a Bench of larger quorum than the Bench whose decision has been held in doubt by the Bench of lesser quorum. As regards the High Court, it has been held by the Supreme Court in Tribhovandas v. Ratilal  (AIR 1968 SC 372.) that ‘when it appears to a Single Judge or Division Bench that there are conflicting decisions of the same Court or there are decisions of other High Courts in India which are strongly persuasive and take a different view from the view which prevails in his or their High Courts, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the question raised in the case’ and that ‘ for making such a request to the Chief Justice no authority of the Constitution or Charter of the High Court is needed, and by making such a request a Judge does not assume to himself the power of the Chief Justice’. The Supreme Court also held that ‘a Single Judge does not by himself refer the matter to the Full Bench; he only requests the Chief Justice to Constitute a Full Bench for hearing the matter’ and that while constituting the Full Bench if the Chief Justice referred to the case that did not mean that the source of authority is in the order of reference. The law laid down by the Supreme Court gives sufficient freedom to a Single Judge not to feel bound by the decision of a Bench of larger quorum and to request the Chief Justice to place the matter before a larger Bench. The effect of the Full Bench decision in Peter’s case is in fact, to take that freedom away and to make Single Judge bound by the decisions Division Benches and Full Benches so much so that the Single Bench has no other alternative than to follow the decision however manifestly erroneous the decision of the Division Bench or the Full Bench may appear.

“Law must be stable and yet it cannot stand still’ is the universal rule(Dean Roscoe Pound: Interpretation of Legal History.). According to Cardozo, application of stare decisis does not involve matching ‘the colours of the case at hand against the colours of many sample cases spread out upon the desk’. It primary involves the duty to ‘extract from the precedents the underlying principle, the ‘ratio decidendi’. There is also a duty, thereafter, to determine ‘the path or direction along which the principle is to move and develop, if it is not to wither and die’(Benjamin N. Cardozo: The Nature of Judicial Process.). Law laid down by a Full Bench may become redundant by passage of time and if Single Judges from whose decision no intra court appeal is provided, are made absolutely bound by the decision of Full Bench with no freedom to doubt the principle or to refer the matter to Division Bench or to the Chief Justice, in the bargain, theory and practice of ‘horizontal stare decisis’ itself will get defeated putting the growth of law in jeopardy. With due respect, it is submitted that the view taken by the Full Bench in Peter’s case that the Single Bench is definitely bound by the previous decisions of earlier Full Benches and Division Benches does not appear to keep with the well laid down principles of ‘stare decisis’.

Of the two legal questions placed before the Full Bench one related to procedure before Family Court in a proceedings under S.25 Cr.P.C and the other related to payment of court on Land Acquisition Appeals. On the first issue, having found that there are conflicting views of the same Court and other High Courts, the learned Single Judge felt that the important question of law needed an authoritative pronouncement by a larger Bench and ordered that the matter be placed ‘before the Hon’ble Chief Justice for appropriate orders of posting’. The order of the learned Single Judge, obviously, was not an order referring the matter to Full Bench which, of course, could have been done only by a Division Bench under S.4 of the Kerala High Court Act. The order of the learned Single Judge was only to invite the attention of the Chief Justice to the legal issue and to request the Chief Justice to place the matter before a larger Bench , a course which was perfectly open to the learned Single Judge to adopt going by the principles laid down by the Supreme Court in Tribhovandas case and Dawoodi Bohra Community case. In fact, it is apparent that the Chief Justice did accede to the request of the learned Single Judge and constituted Full Bench to hear the matters. Going by the law laid down by the Supreme Court in Tribhovandas case it is apparent that the power of the Chief Justice under Section 6 of the Kerala High Court cannot be restricted to any particular category of cases like ‘public interest, the interest of administration of justice, the exigencies of administration of institution etc.’ as held by the Full Bench in Peter’s case. S.6 could only be clarificatory in nature and is meant to save the power of the Chief Justice which was available, as Supreme Court said, even without any constitutional or statutory provisions in that regard. With due respect it may be submitted that the validity of the orders of the learned Single Judge to place the matter before the Chief Justice and the order of the Chief Justice constituting Full Bench as requested by the learned Single Judge having not been under challenge before the Full Bench, the proper course open to the Full Bench in Peter’s case was to consider the matters paced before it on merit.

In Peter’s case the Full Bench noted that another Full Bench in Sathyabhama v. Ramachandran (1997 (2) KLT 503) had held that proceeding for maintenance before the Family Court is criminal in nature and therefore the subsequent decision in Kunhimohammed v. Nafeesa  (2003 (1) KLT 364) had been rendered per incuriam. However, the Full Bench decision in Sathyabhama’s case had been rendered contrary to an earlier Full Bench decision in Balan Nair v. Valsamma  (1986 KLT 1378). In Balan Nair’s case the Full Bench had held that the proceedings for maintenance under S.125 Cr.P.C. was civil in nature. Full Bench in Balan Nair’s case said so relying on a decision of the Supreme Court in Nanda Lal v. Krishna Lal(AIR 1960 SC 882) wherein the Supreme Court had categorically held that proceedings for maintenance under the Code of Criminal Procedure is civil in nature. The Full Bench in Sathyabhama’s case noticed Balan Nair’s case but did not follow it stating that Balan Nair’s case could not be accepted as an authority wherein the nature of the proceedings under S.125 of Cr.P.C. had been correctly understood and laid down authoritatively. Sathyabhama’s case and Balan Nair’s case were decided by co-equal Benches. In the ordinary course the Full Bench in Sathyabhama’s ought to have followed Balan Nair’s case. Had the Bench in Sathyabhama’s case had felt that Balan Nair’s case had not been correctly decided it was open to the Bench which heard Sathyabhama’s case to refer the matter to Larger Bench. But to strike a different note and lay down a principle contrary to the decision in Balan Nair’s case was not in accord with the principles of ‘stare decisis’ laid down by the Constitution Bench of the Supreme Court in Raghubir Singh’s case. Kunjimohammed’s case which says that the proceedings for maintenance under S.125 Cr.P.C. before the Family Court is a civil procedure lays down the correct position in law going by the Full Bench decision in Balan Nair’s case and Supreme Court decision in Nanda Lal’s case. It was only proper, therefore, to have an authoritative pronouncement by a Larger Bench on the legal issue involved.

The question regarding payment of Court fee on Land Acquisition Appeal is also not free from doubt. Levy and collection of fee is essentially a legislative function. Clear statutory indication is necessary to levy and collect fee lest it shall not fall foul of Art.265 of the Constitution of India. Levy and collection of fee cannot be held to be a matter of mere statutory inference. The Full Bench in Balakrishnan Nambiar v. Madhavan & Ors  (1978 KLT 843) interpreted Section 51 of the Kerala Court Fees & Suit Valuation Act and held that ad valorem court fee could be levied on land acquisition appeals. Section 51, however, does not authorize levy and collection of Court fee. S.51 only deals with mode of computation of Court fee. S.52 of the Act authorises levy of fee on appeal ‘same as the fee that would be payable in the court of first instance on the subject matter of the appeal’. No fee is payable in the court of first instance on a land acquisition reference. There is also no specific provision in the Act or in the Schedule to the Act authorizing levy of Court fee on land acquisition appeal. The learned Single found that, in spite of the Full Bench decision and a subsequent Division Bench decision, the levy of Court fee on land acquisition appeal could not be said to be authorized. Persuaded by judicial pronouncements of other High Courts on the issue the learned Single Judge referred the matter ‘for consideration of the Honourable the Chief Justice, for placing before a Larger Bench’, a course approved by the Supreme Court in Tribhovandas’s case. Obviously, thereby, the Single Judge was not adjourning or referring the matter for being heard by a Larger Bench, but was only requesting the Chief Justice to place the matter before a larger Bench for authoritative pronouncement on the legal issue involved. As held by the Supreme Court in United Motor’s case ‘the issue did not relate to ‘ordinary pronouncement declaring the rights of two private individuals’ but’ adjudication on the taxing power of the State as against the consuming general public’ and therefore ‘if the decision was erroneous the Court ‘owed it to the public to protect them against the illegal tax burdens’ which the State was seeking to impose on the strength of an erroneous decision. Obviously, the question of ‘judicial hands off’ theory based on the rule of ‘stare decisis’ did not, therefore, apply to an erroneous decision regarding payment of Court fee.

It is respectfully submitted that in the light of the Supreme Court decisions in Tribhovandas’s case, Raghubir Singh’s case and Dawoodi Bohra Community case, the decision of the Full Bench in Peter’s case does not appear to lay down the correct position in law and needs reconsideration.

Higher Legal Education in India .... Without Compromising on Law  Practice

(By Narayan R., Advocate, Trivandrum)

Intellectual property rights, cyber laws, arbitration laws- areas of law which were alien to our legal system and legal education even a decade back, are now the subject matter of specialization of many a lawyer. The prominent law schools across the country have started offering in their curriculum the above subjects in addition to subjects like environmental laws, human rights etc. And the next generation lawyer is well equipped to handle cyber crime cases and corporate law cases. However, those in active practice will have a hard time to study the newer developments in law and get accustomed to the same. Some universities and law schools in India have started programmes keeping in mind the interest of the lawyer already active in practice, and who do not wish to forsake their active practice.

Included herein are the various options for lawyers to do higher education in law as offered by various institutions and universities.

Masters  in  Law ( LL.M.)

LL.M through correspondence is offered by MG University, Kottayam, Annamalai University, Tamil Nadu and Kakatiya University, Warrangal, Andhra Pradesh. The course duration is three years. The course duration is only two years so far as Mysore University, Karnataka, Kurukshetra University, Haryana and Kuvempu University, Shimoga, Karnataka are concerned. Padmavathi Mahila University, Tirupathi, Andhra Pradesh offers LL.M (Constitution and Administrative Law & Criminology and Torts) for women only by correspondence. Duration is two years. The Bharathiya Shikhsa Parishad, Lucknow also offers LL.M., (2 years) but the status of the University on whether it is a genuine university or not is at litigation before the High Court of Uttar Pradesh (case filed by University against UGC for declaring them as “fake university”). So until that issue is settled it is advisable to stay away from Bharathiya Shiksha Parishad. The ICFAI University offers LL.M through correspondence (2 years) in Alternative Dispute Resolution, Cyber Laws, Environmental Laws, Intellectual Property Rights, Int’l Business Laws and Securities laws.

For lawyers in Kerala, Annamalai, MG University or ICFAI would be the ideal choice. LL. M through Annamalai University- is cost effective and time effective and a student need just attend classes for just 4 days a year. Usually the classes are conducted during the court summer vacation at Chennai or Bangalore. There is an exam center in Trivandrum and in Ernakulam. Annamalai University offers LL. M in Contract laws & Labour laws. Admission for the course is open from July to September. The LL.M. course of MG University, Kottayam is also ideal for practicing lawyers. Classes are held once in a month during weekends. ICFAI University has centres at both Trivandrum and Ernakulam.

Master  of  Business  Laws (MBL)

MBL (Master of Business Law) through evening course at Kerala Law Academy Law College, Kerala University is UGC recognized. A lawyer can also pursue MBL through correspondence via National Law School, Bangalore. Duration is two years.

Master  of  Human  Rights  (MHR)/ M.A.  Human  Rights

MHR (Master of Human Rights) is a PG course via correspondence offered by the Indian Institute of Human Rights, an arm of the United Nations in India through Pondicherry University- a Central University. Though any graduation is sufficient, those having a law background will find it more easier. The subject is also offered as M. A (Human Rights) by Sikkim Manipal University through distance education mode. Duration is for two years.

Master  in  Criminology

National Law University, Jodhpur, Rajasthan offers Masters Degree in Criminal Law, Criminology and Forensic Science through distance education mode. Course duration is for three years.

MA in Criminology and Police Science course through correspondence is offered by Manonamaniam Sundaranar University, Tirunelvelli. Though any degree is the qualification prescribed, legal background helps a lot. Exams are held in May and November- Admission is open throughout the year. Course duration is two years.

Masters  in  Trade  Related  Laws

National Law University, Jodhpur, Rajasthan offers Masters Degree in Trade Related Laws through correspondence. Course duration is for three years.

Master  of  International  Environmental  Laws  (MIEL)

MIEL (Master of International Environmental Laws) is a two year course to be started by Indian Institute of Ecology and Development, New Delhi an associate organ of the United Nations in association with Pondicherry University and Sikkim Manipal University. It is informed that the course will be started sometime in 2007 or 2008.

Bachelor  of  Business  Law  (B.B.L.)

Annamalai University offers Bachelor of Business Law through correspondence. However, when there is an option for lawyers to join the two year MBL course directly, this course is not advisable. The duration is for 3 years.

Post  Graduate  Diploma  Courses

These Post Graduate Diploma Courses (via Distance education/ online learning) are also worth mentioning. The duration is one year for all courses, except those stated otherwise.

1. PG Diploma in Alternative Dispute Resolution, Asian School of Cyber Laws, Pune

2. PG Diploma in Alternative Dispute Resolution, NALSAR, Hyderabad

3. PG Diploma in Aviation Laws, Asian School of Cyber Laws, Pune

4. PG Diploma in Business Laws, Asian School of Cyber Laws, Pune

5. PG Diploma in Consumer Laws, Kakatiya University, Andhra Pradesh 

6. PG Diploma in Corporate Mergers, Acquisitions and Reconstruction, Asian School of Cyber Laws, Pune

7. PG Diploma in Criminology & Forensic Sciences, Annamalai University, Tamil Nadu

8. PG Diploma in Cyber Laws, NALSAR, Hyderabad

9. PG (Advance) Diploma in Cyber Laws, Asian School of Cyber Laws, Pune

10. PG Diploma in Environment Laws- National Law School, Bangalore

11. PG Diploma in Family Dispute Resolution, NALSAR, Hyderabad

12. PG Diploma in Human Rights, Bharthiya Shiksha Parishad, Lucknow

13. PG Diploma in Human Rights, Indian Institute of Human Rights, New Delhi (2 years)

14. PG Diploma in Human Rights Law, National Law School, Bangalore

15. PG Diploma in Intellectual Property Law, Asian School of Cyber Laws, Pune

16. PG Diploma in Intellectual Property Law, NALSAR, Hyderabad

17. PG Diploma in Intellectual Property Law, National Law School, Bangalore

18. PG Diploma in Intellectual Property Law, National Law University, Jodhpur

19. PG Diploma in International Humanitarian Law, NALSAR, Hyderabad

20. PG Diploma in Labour Laws, Bangalore University, Bangalore

21. PG Diploma in Law and Public Services, Kakatiya University, Andhra Pradesh

22. PG Diploma in Media Laws, NALSAR, Hyderabad

23. PG Diploma in Medical Law and Ethics, National Law School, Bangalore

24. PG Diploma in Patent Laws, NALSAR, Hyderabad

25. PG Diploma in Patent Laws, Practice and Procedure, Asian School of Cyber Laws,  Pune

26. PG Diploma in Securities and Investment Law, Asian School of Cyber Laws, Pune

27. PG Diploma in Securities and Management, National Law University, Jodhpur

28. PG Diploma in Taxation Laws, Bangalore University, Bangalore

Certificate  Courses

1. Certificate in Criminology and Forensic Sciences, University of Kerala (6 months-1 year- evening course)

2. Certificate Course in Cyber Laws, NAAVI’s Cyber College of Law, Chennai (1 year-online learning)

3. Certificate Course in Techno Legal Cyber Security, NAAVI’s Cyber College of Law, Chennai (1 year-online learning)

Masters  in  Philosphy  (M.Phil.)/ Doctorate  in  Law  (Ph.D.))

M. Phil or Ph. D through correspondence in law was not available in any of the Indian universities, till recently. However, demand for getting M. Phil is on the rise since the UGC announced earlier this year that persons having M Phil. are exempted from getting UGC - examination qualification. Jawaharlal Nehru University, Delhi offers M. Phil. as a fulltime course- 3 years. 

For those interested -Alagappa University in alliance with Golden State University, Wyoming, United States offers Ph. D in various subjects including law. Post graduation in law is the basic qualification. The fee comes to around Rs. 70,000/- and the duration is for one year. The student need just submit the thesis. The details can be had from the Alagappa study centre at Trivandrum or Ernakulam. However, it is advisable to check the credentials of the Golden State University before enrolling for the same.

Ph.D. in law is offered through correspondence by Padmavathi Mahila University, Tirupathi, Andhra Pradesh. This course (duration 4 years) is open for women only.

This is a general outline of the courses concerned and further details have to be had from the respective universities directly. The courses delineated over here are those available in India only. Courses conducted by foreign universities through distance education/online learning also might prove worthwhile and interested lawyers are advised to use the Internet for good use to search the same. The above mentioned courses are NOT recommended for law graduates who desire to have a career in pure academics; and are only for those lawyers whose first priority is law practice and those who do not have time to attend regular classes each day.

An offence is an offspring of a guilty mind and action (actus reus and mens rea). The physiological factor is an important element in judging the action as an offence or not. Commission of an offence, ancillary action to commit it, and joint participation to commit an offence has been legally classified by respective definitions to befit different punishments. Several persons may joint hands to commit a criminal offence, each one of them contributing in varying proportions, in a carefully orchestrated manner designed to achieve a particular result. We know that S.34 of the Indian Penal Code was drafted into statute book to take within its ambit the joint action of deferent persons to commit an offence casting the responsibility of the offence on all persons who has participated in the offence with a common intention. Now the latest decision of Supreme Court reported in 2006 (3) KLT 398 (SC) has provoked this prick of thought which has crystallised into this article.

CASE

Priya Patel v. State of Madhya Pradesh and Anr. (2006 (3) KLT 398 (SC)

Factual matrix of the case is that, the prosecutrix, a sports personnel was taken by the accused, husband of the appellant in the above mentioned case, to this house on some false pretext and committed rape on her. At the time of committing the offence, the appellant, who is the wife of the accused, was there. The prosecutrix requested the appellant to save her. Instead of saving her appellant slapped her, closed the door of the house and left the place of incident. The appellant was charged for the offence under Ss.323 and 376(2)(g) of the Indian Penal Code. Reversing the order of conviction of the appellant the Hon'ble Supreme Court acquitted the appellant holding that it is conceptually inconceivable for a women to commit rape and she cannot be prosecuted for an offence under S.376(2)(g) of the Indian Penal Code, by applying the doctrine of joint liability as contemplated under S.34 of the Indian Penal Code and also as per Explanation 1 to S.376(2)(g).

The reasoning applied by the Hon'ble Supreme Court is that, a woman cannot share a common intention with other person to commit gang rape. Basis of this view, being the physical incapacity of the women to commit rape. 

Disagreement

The point of disagreement with the aforesaid view of the Hon'ble Supreme Court starts with the interpretation of S.34 and Explanation 1 to S.376(2)(g) given in the above mentioned case. The ambit of the sections has been restricted to acts; a person is physically capable of doing, which interpretation doesn’t seem to be in tune with the spirit of S.34 of the Indian Penal Code.

If we analyse the subtle spirit of S.34 of the Penal Code, we can see that two elements are essential. One is participation and another intention. There is no dispute regarding the first one, but magnifying our thought on the second aspect that is the “intention” to commit an offence, we reach a point of introspection as to idea conveyed in the word “Intention”. We know that to attract S.34 several accused persons should have a “common intention”, which should be anterior in point of time. Now the chaos of thoughts begins while try to fix a meaning to the term “intention”. What is the exact nature of idea conveyed in the word intention? The difficulty is to choose between two equally qualified choices inherent in the word “Intention”.

1) Subjective intention and

2) Objective intention.

If choose the first one i.e., the subjective intention, then needless to say that an intention to commit an offence can be attributed to an offender if only he/she is physically capable of committing that particular offence. e.g. A women cannot commit a legally defined rape as she is biologically incapable of committing the same as per definition of rape under S.375 of the Indian Penal Code. This one seems to be balanced and doubtless.

When we consider the second one i.e., the objective intention, then question is whether the intention to commit an offence is physiological or psychological factor. A person may intent to achieve a particular act, which is an offence by joining hands with others having the same intention. If we judge it subjectively he/she must be in a position to physically commit an offence. But if we judge it objectively, then even if physically incapable of committing the offence by self, if he/she has participated in the offence with others with the intention of achieving, a particular object, then also S.34 of the Penal Code is attracted. In objective intention the psychological factor supersedes devoid of any physical criteria.

If we further analyse S.34, it can be seen that, the section is set in the background of common intention, which is the essence of it, and there should be an act constituting an offence. ‘Intention’ is physiological factor, having a subjective seat, but its realisation is objective. A person intents to commit an offence, he/she joints hands with other persons having the same intention for the purpose of executing his intention. When it comes to the execution of the act the object of the person assumes importance which is to execute the act indented. The said intention is uninfluenced by any biological criteria.

When we apply the aforesaid reasoning to the facts of the case in hand we can see that the wife of the accused has actively participated in the offence, common intention of both of them is to see that rape is committed. Now the crucial question is, whether it is necessary for the deeming provision inbuilt in S.34 or Explanation 1 to S.376(2)(g) to apply that, each individual should be physically capable of committing the offence, or is it sufficient enough that the object of the offender is achieved.

About  deeming  provision

If we observe what is patent and latent in S.34 or Explanation 1 to S.376(2) (g), there is no iota of doubt that a personal physical ability of the offender to commit the offence is not a criterion to trigger the deeming provision in S.34. This view is more corroborated when we dig out the essence of the deeming provision. A deeming provision is a legal fiction by which responsibility is fixed for a particular act even if factually inconceivable. It is well accepted principle of law that S.34 is a fully potent constructive liability charged by a deeming provision to presume liability for an offence done by several persons with a common intention. The special feature of the deeming provision being its peculiarity to presume certain things, even though factually impossible. To clarify further, it is presumed that a person has committed an offence even though he has not actually done it, if he had participated in the commission of the offence with other persons having common intention. The important point is that the act constituting an offence need not be committed by the person individually, or acts of several persons, but the final act being the cumulative result of all the acts, he deeming provision is designed to apply in cases were the final cumulative result has been achieved of the common intention of two or more persons acting in concert. Individual role is restricted to participation without a qualification criterion of physical ability.

It is true that the S.375 of the Penal Code, defines rape with opening words prescribing genetic quality that “A Man is said to commit “Rape”, thereby restricting the scope of the definition only to man. But it is also true that the definition defines the offence and deeming provisions decides its applicability. When we evaluate Ss.34, 375 and Explanation 1 to S.376(2) (g), of the Penal Code for discovering a logic to the legislative intent, we can see that when it comes to the applicability of the definition, there is no discrimination in the form of a genetic quality. That is the reason why, there is no qualifying words either in S.34 or in Explanation 1 to S.376(2)(g) of the Penal Code. In both these sections word used is “Persons” which term includes both man and women. This activity of choosing of words by the legislature cannot by sidelined by an argument that it is a coincidence, as S.34 is a general rule of evidence applicable to all sections, because even in the case of Explanation 1 to S.376(2)(g) which is a specific deeming provision applicable to cases of gang rape, the word used is “Persons”. Hence a rational interpretation scales in favour of the view that the legislature has consciously exercised its wisdom in incorporating the word “Persons” in Explanation 1 to S.376(2) (g) and has included in its ambit both man and women even in its application in cases of gang rape.

Applying the aforesaid reasoning to the issue in hand we can see that the appellant has participated in the offence of rape with the intention to see that rape is committed on the prosecuterix. The intention she shared with her husband was that rape is committed on the prosecuterix, which can be safely inferred from circumstances. The question whether she herself was capable of committing rape was immaterial for deciding the applicability of S.34 of the Indian Penal Code.

To agree with the Hon'ble Supreme Court is a constitutional mandate, to disagree with Hon'ble Supreme Court is a constitutional privilege and power of correction being a self evolved virtue and a premier quality of the judicial conscience. And this point of error is a humble contribution from a member of a community ever vigilant to maintain the majesty of the tower of justice.

Conservation of Reservation Benefits under Art. 16(4) -- Supreme Court   Decision in

Nagaraj v. Union of India of 19.10.06 -- A Bold Step on Right  Direction

(By U. Balagangadharan, Advocate, Ernakulam)

The Apex in its very recent judgment of 19.10.2006 in Nagaraj v. Union of India (W.P.© 61/2002), it has been emphasized that the reservation altogether shall not be more than 50% and the creamy layer among Scheduled caste and Scheduled Tribe shall be removed from the ambit of reservation while upholding the validity of Article 16(4)(a) of the Constitution of India. The Supreme Court in one limb emphasizes on true percolation of reservation benefits to the needy by avoiding the repeated beneficiaries and non-deserving groups among SC and ST. On the other limb it keeps the Rubicon of reservation at 50%, keeping in view of the administrative efficiency as enumerated under Article 335 of the Constitution of India.

The plight of the Scheduled Caste and Scheduled Tribes population in our country even today remains catastrophe despite long innings of job reservation for their adequate representation in Government. Continued backwardness, among SC and ST despite meaningful administration of positive provisions under the Constitution for their upliftment for about 50 years since independence, sends signals of doubts as to whether the benefits of reservation envisaged under Constitution is either misdirected or siphoned away by unintended citizens. Though the benefit of reservation was permitted only for 10 years initially, it is still being extended by Presidential orders religiously from time to time. Periodic extension of reservation itself recapitulate a fact that major chunk of SC and ST brethren are still waiting to be uplifted by way of reservation. It, therefore, remains as a naked truth that the benefit of reservation is not obviously percolated vertically to the needy among SC and ST masses as intended but at the same time it is stolen either by the elites and the developed among SC and ST or by others who masquerade as SC and ST. This is an attempt to probe the areas of seepage of the reservation benefits and it further seeks to suggest conservative measures for its optimum use. This issue assumes importance in the wake of privatization whereby job opportunities under Government are shrinking drastically. Therefore, it is fair and equitable to share the benefit of reservation equally to whole mass of SC and ST population to uplift them and to bring them into the main stream of nation building, in pursuit of achieving equal opportunity envisaged under Article 16.

The concept of protective reservation for Scheduled Caste and Scheduled Tribe in Govt. service was originated way back in 1932 in the Poona Pact, where Dr.Ambedkar and Hindu leaders reached a pact, in which it was decided to withdraw separate electorate for SC, however, it was resolved to give increased representation in Government for a period of 10 years. Accordingly, a provision -Art.16(4)- for reservation of posts under the Govt. was incorporated as an exception to Equal Opportunity right under Art.16(1). Art.16(1) (Article 16(1) : “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”.) was incorporated in the Constitution to guarantee equality of opportunity to all citizens in the matter of employment. Article 16(4) (Article 16(4): “Nothing in the Article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the service under the State”.), though not in the nature of exception to Clause (1), permits an instance of classification (Indra Sawhney v. Union of India ( AIR 1993 SC 477).) for extending reservation in favour of backward class citizens. The word “backward” was not originally in the Constitution as passed by the Constituent Assembly but it was prefixed to word ‘class’ under Article 16(4) by the Drafting Committee. Dr. Ambedkar introducing the Article 16(4) said that unless such qualifying phrase as ‘backward’ is used, the exception made in favour of reservation will ultimately eat up the Rule together.

Reservation mainly implies a separate quota which is reserved for special category of persons (Government. of A.P. v. P.B. Vijayakumar (AIR 1995 SC 1648).). The framers of Constitution in pursuit of providing socio-economic equality to the disadvantaged (State of U.P. v. Dr. Dinanath Sukhla ((1997 ) 9 SCC 662).), a provision viz. Article 16(4) was incorporated in the Constitution. This envisages reservation in appointment as a positive facility and opportunity to backward to improve and excel in a service or post (P.B.Vijaya Kumar’s case (supra).). The aforesaid provision intends that the State may reserve any post or appointment in favour of any backward class of citizens who, in the opinion of the State, are not adequately represented in the services under the State. However, backwardness is not defined either in the Constitution or any other law (Inder Sawhney v. Union of India, (AIR 1993 SC 477).). But the Constitution consciously prohibits reservation for any person who does not belong to the category of backward classes nor does it enable the State to reserve posts on communal line (Venkataramana B. v. State of Madras( AIR 1951 SC 477).). The aforesaid protective reservation under Article 16(4) is passively supported by Article 46 (Art. 46: The State shall promoted with special care the educational and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Caste and Scheduled Tribes, and shall protect them from social injustsice and all forms of exploitation.) enshrined under Directive Principles of State Policy in the Constitution. The Article embodies the concept of ‘distributive justice’ which connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequal in society (Lingappa Pochanna Appealwar v. State of Maharashtra, AIR 1985 SC 389). However, the benefit under this provision can not be claimed as a matter of right (In re.Thomas (AIR 1952 Mad. 21).).

From a plain reading of the relevant Article 16(4) of the Constitution, it is well discernible that reservation is directly relatable to ‘backwardness’. The word ‘class’ as used in the Article is not identical with the word ‘caste’ but a particular caste may continue to be a backward ‘class’, if collectively it is socially backward (Indra Sawhney v. Union of India ( AIR 1993 SC477).). Economic criterion cannot be the sole basis for identification of backward classes; but it may be taken into consideration along with and in addition to social backwardness (Indra Sawhney v. Union of India ( AIR 1993 SC477)). The Supreme Court observed that accent in Article 16(4) is on social backwardness, however, the Scheduled Caste and Scheduled Tribes are entitled to be treated as backward class though not separately mentioned in Art 16(4) (Chandralekha v. State of Mysore ( AIR 1964 SC 1823).). It is apparently settled that the object of reservation, is to replenish the loss or to wipe out stigma that one would have sustained being a member of backward class in their early start-up of their life. However, HM Seervai cautions that if the backward class do well in unreserved seats, it will require the Govt. to remove the backward classes from the list who no longer need the help which Article 16(4) was designed to provide (‘Constitutional Law’ by HM Seervai, 3rd Edn. Page 450.). It, therefore, goes without saying that reservation as envisaged by the Constitution is not Caste based Reservation but it is unambiguously class based reservation and it further maintains that one does not becomes automatically entitle to be blessed with the benefit of reservation ipso facto being a member of Schedule Caste or Scheduled Tribe unless one is proved to be backward at the material time. Admission to the class of backwardness is determined at the touchstone of ‘backwardness’. In other words a candidate who had the disadvantageous start of life for being taken birth in backward caste and who has suffered economic, social and other disabilities are sought to be protected by the concept of reservation (Corolary of Valsamma Paul’s case (JT 1996 (1) SC 57).). The corollary of the situation is that caste by itself cannot be determining factor of backwardness and mere being member a Scheduled Caste and Scheduled Tribe community one shall not be bestowed or shall not be allowed to bequeath with the benefit of reservation unless one suffers the disadvantages or backwardness being a member of Schedule Caste or Schedule Tribe. A member of SC and ST who had better start-up in their life either socially, economically or morally, is found to be equipped to compete and rub shoulders with his fellows in the unreserved category and come out successful like any one else. It is for the above obvious reason, the Apex Court has been holding consistently that if some SC candidates get selected on their own merit, in the open competition, they should not be counted against the quota reserved for SC (PGI of Medical Education and Research v. K.I.Narasimhan (( 1997(6) SCC 283 (para 5).). The Constitution and law do not intend blanket extension of reservation benefits under Article 16 to a member of SC and ST and the “backwardness” is the test stone. The unambiguous observation in Indra Sawhney (Indra Sawhney v. Union of India (AIR 1993 SC477).) that reservation can be for the backward classes of citizens of a caste but caste alone cannot be the basis of reservation, further fortifies the position. The Apex Court further cautioned that where test of “backwardness” in Clause (4) of Article 16 is not satisfied or there is no other test in accordance with Clause (4) of this Article, a distribution of posts on basis of community or place or residence shall be violative of Clause (1) of Article 16 (Chairman & Managing Director, Singareni Collieries Co. Ltd v. Naresh Chander ( 1995 Supp. (1) SCC 167.). Any determination of such backwardness by the Executive is not a matter of subjective satisfaction but must be founded on objective tests, e.g. social and other relevant criteria which is subject to judicial review (Indra Sawhany’s case(supra).).

The scheme of the Article 16(4) is to put an end to the menace of backwardness by providing necessary representation in Govt. from among the eligible candidates of backward class whom, in the opinion of the State is not adequately represented in the Govt. The language used in the Article points out that it is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward classes of citizen, which in the opinion of the State is not adequately represented either numerically or qualitatively in service of State. This means it is not a Constitutional right (Periyakaruppan A v. State of Tamil Nadu ( AIR 1971 SC 2303).). The Government in exercise of the aforesaid discretion, it was decided to reserve certain percentage (15% for Scheduled caste and 7.5% for Scheduled Tribes as of now)of posts in Government service exclusively for the backward classes initially for 10 years. The President invoking Article 341 and 342 of the Constitution and in consultation with the Governor of the State by public notification specify the castes, races, or tribes which shall for the purpose be deemed to be SC and ST (Constitution (Scheduled Caste) Orders, 1950 and related orders). Since reservation of posts in Government for SC and ST is considered to be the Constitutional remedy to ward off the backwardness, the Government is invested with a duty to ensure that the benefit of reservation is made available to the most deserving incumbents of the class to whom it is intended for in pursuit of their upliftment. In other words, the benefit is neither leaked waste nor enjoyed by ineligible incumbents.

In this back drop, the moot question becomes more relevant. How far we have been successful in uplifting the backward classes especially SC and ST from the state of backwardness by virtue of the aforesaid Constitutional protective reservation. Ever since India became republic, the Constitutional provisions as enumerated under Article 16(4) are fully put to use and it has even been subjected to couple of amendments to ensure better benefits to the backward classes. The word ‘appointment’ referred to in the clause though intended to embrace promotion earlier (General Manager, Southern Railway v. Rangachary (AIR 1962 SC 1962).), the Supreme Court in Indra Sawhney narrowed down the interpretation and held that the said word did not include promotion. This has led to incorporation of Clause 4-A to the Article 16 in 1995 (77th Amendment Act 1995 with effect from 17.6.1995.). The said clause was subjected to further amendment (Constitution (85th Amendment) Act 2001 with effect from 17.6.1995.) which sought to permit the reserved incumbents to carry with them the benefit of seniority along with promotion which was denied by the Supreme Court (Ajith Singh & Ors. v. State of Punjab ((1977) 7 SCC 203).). Therefore, the polity and the Constitution have been gearing up time to time to ensure proper and effective representation of backward classes in the Government.

However, it is unfortunate that the whole exercise goes otiose for the lone reason that majority of SC and ST population remain undeveloped. It appears that lion’s share of benefit of reservation is being eaten up by an affluent group in the SC and ST which can be conveniently called as creamy layer. This group is socially, economically and educationally developed and no backwardness could be either experienced or felt by them in their practical life. They enjoy equal or better social status than the forward caste either due to their positions in the Government or due to the economic stability. It may be elucidated that the family members of an incumbent belonging to reserved category upon getting a placement in Government get uplifted socially and economically. Better education and living amenities are extended to his family members and his dependants. Consequently his children and dependants are brought up in a analogous social and economic milieu corresponding to any other citizen of the country. They develop better competitiness coupled with social and economic status untrammeled by the fact that they belong to SC or ST community and they are equipped to be fit to compete with unreserved category in all respects. They experience no social, cultural or economical disabilities during their start-up of life. However, they are bestowed with the benefit of reservation for the lone reason that they happened to take birth in a SC or ST family. Do they really need the benefit of reservation? Did they suffer the disabilities being a member of the SC or ST family? Answer is a simple ‘NO’. The creamy layer in SC and ST compete against the quota intended to be filled from among backward, less fortunate and down trodden among SC ST and those who have virtually suffered the disabilities being SC or ST in their life. It is a cake walk for the above elites. This is an unfair competition as unequals and equals are put together in a homogenous group. Needless to say the aforesaid elite class (creamy layer) among SC and ST by fait accompli snatches away the entire opportunities, mercilessly ousting out the poor and unprevilaged SC and ST from the reservation net, causing violence to the very principle of reservation. The benefit of reservation is intended to reach the poorer and weakest section of the class and the ‘means test’ is, therefore, to skim off the affluent section of the backward class (Asok Kumar Takur v. State of Bihar ((1995) 5 SCC 403).). The creamy layer in a caste is not socially and educationally backward, rather it is on par with forward classes and, therefore, has to be excluded from the purview of reservation otherwise it would be violative of Article 14, 16(1) and 16(4). Since the quantum of benefit is definitely fixed (15% for SC and 7.5% for ST.), by removing the disentitled and affluent group of SC and ST incumbents from reservation net, the quantified benefit will penetrate/percolate deep into the grass root level among SC and ST gearing up wholesome development of SC and ST as intended and envisaged by the Constitution under Article 16(4). Relaxation of qualifying tests and other conditions in favor of SC and ST are intended to extend the reservation net to uplift the under privileged among SC and ST. Reservation in the yester years has helped only to create an affluent class among SC and ST which gets distended and swollen with the benefits forbidding the benefit reservation from reaching the deserving among SC and ST being. The recent decision of Apex Court in Nagaraj v. Union of India aptly answers the above concern.

Article 14 always permits reasonable classification. Classification of SC and ST incumbents into two groups as creamy layer and unprivileged is based on intelligible differentia and it qualifies the test of equality. Such a classification has nexus with the object of classification. The task of identifying the creamy layer among SC and ST for the better conservation and management of reservation benefit is possible by adopting similar parameters as has been followed in identifying creamy layer in the Other Back Ward Communities. Leaders of SC and ST organizations, perhaps, turn a blind eye towards this aspect as they will be first to loose the benefits being SC and ST. Time is up to ponder deep into the above issues and evolve a suitable mechanism to skim off the beneficiaries from the net of reservation for the substantial elevation of SC and ST across the country. An earnest effort is also necessary to identify fake claimants of SC and ST status and they are to be curbed by suitable legislation. There is genuine need to create awareness among SC and ST to identify their enemies among themselves and they shall be equipped to fight against the flow of the benefits to the unintended elites among SC and ST. State is also obliged and duty bound to uplift every SC and ST on par with any others citizens to make the equality provision under the Constitution a reality. The State is held to be entitled to do everything for the upliftment of members of these Castes and Tribes to make reservation effective in view of what is enshrined under Article 46 (State of MP v. Nevidita Jain (AIR 1981 SC 2045).).

Reservation and its Inner Scenes

(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)

The inspiration to write up the article flowed after reading down the article of Honourable Justice K.R Radhakrishna Menon penned up in 2006 (3) KLT page 49 (Journal part). In every society which has economic and social inequalities and which cannot provide education and employment to all, the problem of reservation must and does arise. Neither the most developed and prosperous country like America nor an under developed country like India can escape it. Only a country with a planned and rational structure of society can provide education and employment to all. Hence a permanent solution to the problem of reservation is the establishment of a society with a rational, economic and social structure. Unless both the protagonists and antagonists of reservation grasp this fundamental truth and unite to create such society, the problem of reservation will remain with us forever festering dissension, strife and violence imperilling the unity and stability of the country and regarding its progress and development. The ludicruous nature of the agitation on the issue becomes apparent when one realises that as against the teeming millions of aspirants for higher education and jobs every year, a niggardly number of seats in educational institutions and jobs in the public sector are available. The proportion of the available seats and the jobs is growing more and more unfavorable to the aspirants every year with the ascending rate of growth in population and proportionally decreasing rate of growth in the educational and employment opportunities. In this state of affairs even if all the educational and employment facilities available at any particular time were either reserved, it will not solve the problem of more than an insignificant number of needy ones on either side. The reservation by its very nature implies making provision for one needy while denying it to another. The battle is between those in need. The essence of the problem of reservation lies in deciding who among the needy should be the gainer, or to put it the otherway, who should go without the satisfaction of his need.

Economic rights are the bedrock of Human rights. Right to work and education are the basic economic rights. They alone enable an individual to live and develop as a human being and to participate in the affairs of the society as an effective member thereof. Every citizen is therefore entitled to employment and education according to his capacity . A society which cannot provide them to all its members is an unscientifically and irrationally organised society. It cannot even be called civilized whatever the strides it may make in other fields. In an unequitable society such as ours, some are always provided for and advanced, while others are deprived and backward. In addition to the economic factors, the uneven development may also be on account of irrational prejudices of race, religion, caste, colour, language, or other social disabilities. It becomes therefore necessary to lift the backward to the level of the forward by devising various methods one such device is to keep reserved some educational seats and or jobs for those who cannot compete with others on account of their backwardness. When the backwardness is of a group as a whole the reservation is kept for the individual as a member of the group, if for no other reason, at least for the purpose of easy identification of his backwardness. However the object is the upliftment of the group as such.

There are of course types and degrees of backwardness. Some are backward only economically while others are backward educationally as well as socially. Although economic backwardness is at the root of social and educational backwardness, in this country the peculiar caste system has added a new dimension to the problem. On account of the caste taboo, educational and social advancement was denied even to the economically sound. The scheduled caste and scheduled Tribes are therefore backward in all respects. Among the backward, further, the levels of backwardness vary. Even among the scheduled castes and Tribes some are more backward than others. Hence it stands to reason that those who are backward in all respects such as the scheduled castes and Tribes should get preference over others and those among the Scheduled Castes and Tribes who are more backward should get priority over those who are less backward. It is also consistent with this principle that those who are advanced, even if they nominally belong to the backward groups, should get no share in the reserved seats.

The acceptance of caste as the basis of reservation does lead to the accentuation of the caste distinctions in the short run. However, it must be remembered that castes are not a modern phenomena nor are they created by reservations. They will also not disappear if the reservations are done away with. The caste will disappear only if there are inter caste marriages. The inter caste marriage will take place as a matter of course only if all the castes are brought on the same cultural level. This will not happen unless they are first brought on the same educational and economic level. Even today in the same caste whether forward or backward, marriage takes place only between the individuals who are on the same cultural level. The reservation on the basis of caste is a mode of raising the cultural level of the low castes to that of the higher castes.

A fear is often expressed that during the transitional period, the level of efficiency in all fields may be lowered since merit will have to be sacrificed. It is necessary to consider this aspects more closely and dispassionately. To begin with, what do we understand by merit ? Generally we decide the merits of a candidate on the basis of the marks he obtains either in the written or oral tests. These tests have however several inherent infirmities. Apart from the malpractices which are resorted to in these tests for securing the maximum marks, it is difficult to accept these tests as suitable methods for discovering either the required aptitude or talent. At best they are rough and ready gropes for the purpose. In subjective examinations these tests run haywire. The markings depend upon the individual examiner’s attitude, notions and methods some examiners are liberal while others are conservatives in giving marks. Hence, it has to be acknowledged that mere marks are no indication of the suitability of a candidate for a particular profession or job.

The problem of determining the suitability of a candidate to take up a particular job or education is also linked up with the question of fixing the minimum marks that he must obtain in the qualifying test. At present, we do witness a spectacle that admissions to certain courses or jobs are closed at as high a percentage as suppose eighty. Is it suggested that those who get say 79 percentage or 60 percent marks are unsuitable or unqualified to take up the job or the course concerned ? Where do we then fix the minimum qualifying marks? It is common knowledge that the marks earned in a particular examination depend upon several factors and particularly the circumstance under which the candidate is placed at the particular point of time. We have with us the well known example of Dr. Ambedker, to take only one out of many. He had scored only about 37% marks in his matriculation examination. However he proved to be a giant of an intellectual in his later life. If he were to be denied admission to higher education on the ground of his poor scoring in the matriculation examination, the country would have been poorer in many respects. On the other hand, it is also a fact that some of those score higher marks in their examinations fail in their later life for efficiency in jobs or the proficiency in a profession, which does not depend upon the marks obtained in examinations. Hence the qualifying marks should never be unreasonably high. The merit in the examination should be distinguished from the merit for the job or the course as the case may be.

Thus the remedy therefore is to create enough educational seats and jobs to go round for all and not to adopt, one or the other criteria for reservation. The poor will always be at a disadvantage and the poor in the low castes at a greater disadvantage. However, the establishment of a society where education and employment will be available to all those who are in need is a distant goal and will take a long time to realise. During the transitional period it is necessary to accept the claim of those who are more unfortunate than others and prepare a scheme which, while doing real justice to the more deprived. It will also remove some of the present irritants and prove beneficial to the society as a whole in the long run. The scheme should keep in pace with the following aspects. 

A. There need not and should be no reservation in the teaching profession. Reservation in the teaching profession is to the disadvantage of the reserved classes themselves. Those from the higher classes do not have to depend only on the tuitions given in the schools and colleges. They receive and can receive education at home and else where as well. These other facilities are not available to the members of the reserved classes for want of tradition of learning and funds.

B. In the reserved classes there are sub classes (or castes) of varying degree of backwardness. The members of the lower class or caste among the backward classes should be preferred to the member of the higher class or caste.

C. Members of the reserved classes should be given all the facilities of education free of charge. In addition, special efforts should be made to bring them to the level of the members of the higher classes.

D. The object of reservation is to bring the lower castes to the level of the higher castes or classes. Hence those who are advanced should not get the benefit of reservation even if they belong to the reserved classes. So also the children of those who have availed of reservation once, should be denied its benefit. To give the benefits to them is to operate the reservations only for the advantage of certain families.

E. In view of the purpose of the reservation it is arbitrary to prescribe any time limit for the end of reservation in terms of years. The reservation should end only when the low castes attain the level of high caste.

F. A review should therefore be made at regular intervals of the backwardness of reserved classes and the classes which have advanced should be deleted from the reserved classes or the proportion of reservation to them should be curtailed suitably.