SUPREME COURT STRIKES DOWN 97TH CONSTITUTIONAL AMENDMENT ON CO-OPERATIVES

– REFLECTION AND REFRACTION

R. Muralidharan

The Supreme Court in Union of India vs. Rajendra N Shah and another, C.A. Nos. 9108-9109 of 2014 : LL 2021 SC 3112 nixes most of the provisions introduced by 97th Constitutional Amendment Act (97th CAA) on the ground that the requisite ratification from States was not obtained as per Article 368(2) of the Constitution.

A 3-Judge Bench comprising Justices Rohinton Nariman, KM Joseph and BR Gavai dismissed the appeals filed by the Union of India against the judgment of the Gujarat High Court. The Bench unanimously held that the 97th CAA required ratification by at least one-half of the State legislatures as per Article 368(2) of the Constitution, since it dealt with an entry which was an exclusive State subject (co-operative societies). Since such ratification was not done in the case of the 97th CAA, it was liable to be struck down. There was a split in the Bench on the point whether Part IX B will survive with respect to Multi-State Co-operative Societies (MSCS). While the majority comprising Justices Nariman and Gavai upheld those provisions of Part IX B which deal with Multi-State Co-operative Societies (MSCS) by applying the doctrine of severability, Justice Joseph dissented on this count. Justice Joseph held that the doctrine of severability was not applicable and struck down the entire amendment.

What is 97th CAA?

The Constitution [97th Amendment] Act, 2011 was passed by the Lok Sabha on 22nd December 2011 and the same was passed by the Rajya Sabha on 28th December 2011. The President of India bestowed assent to that amendment on 12th January 2012 and the said notification was published in the gazette of India of 13th January 2012 and the amendment came into force on 15th February 2012. This was hailed and applauded as it would insulate about six lakh co-operative societies from political and Government interference and to strengthen the co-operative movement, per se.  The amendment would grant citizens a fundamental right to form co-operative societies and allow for voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

Section 2 of the Amendment Act inserted the word 'co-operative societies' to Article 19(1)(c) which reads that all citizens shall have the right to form associations or unions or co-operative societies. Also the amendment introduced Article 43B (in Directive Principles of State Policy) which says that States shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

The amendment was inserted as Part IX B of the Constitution and contained Articles 243 ZH to 243 ZT.  The States and Union territories were given time of one year to amend their respective States Act in tune with the 97th CAA as Art. 243 ZT prescribed that any provision inconsistent to the provisions of the 97th Amendment Act shall continue to be in force until amended or repealed by the State Legislature or until expiration of one year from such commencement, whichever is less.

A writ petition being W.P. (PIL) No. 166/2012 in Rajendra N Shah vs. Union of India and another [CDJ 2013 GHC 045]filed before the Division Bench of the Gujarat High Court succeeded vide the impugned judgment dated 22.4.2013, by which Part IXB was declared to beultra viresfor want of ratification by the State Legislatures under Article 368(2) proviso.

Assail on the judgment of the High Court

The essential challenge pitched by the appellant against the order of the High Court is that Part  IXB  is  in  two separate parts – one dealing with MSCS which  have  ramifications   beyond  merely  one  State,  and  co-operative societies which exist and operate within a particular State. Even though there was no challenge insofar as MSCS were concerned, the entirety of Part IXB has been struck down, throwing out the baby with the bath water.  As many as 17 out of 28 States have, after the 97th Amendment, already enacted legislative measures in conformity with Part IXB and that therefore more than half of the States had, in effect, accepted and applied the provisions of Part IXB.  What is also of significance is that the Constitution 97th Amendment was preceded by a detailed consultation with the State Governments as a  result  of  which  no  State  Government  has  come  forward  to challenge the same. In point of fact, a reading of Part IXB would show that no additional legislative power has been given to the Union.  All subject matters relating to co-operative societies fall solely within the legislative domain of the States.

If the doctrine of severability is to be applied, then in the event of the   Court finding  that  State  co-operative societies  cannot  be  impacted  without  following  ratification,  MSCS, which have ramifications beyond one State,  can  be  held  to  be  covered  by  Part  IXB,  as  would  Union territories,  and  that  on  applying  the  aforesaid  doctrine,  Part  IXB ought to be upheld, at least insofar as the MSCS are concerned.

It must never be forgotten that while inserting Part IXB into the Constitution of India, Parliament has exercised its ‘constituent’ power and not ‘legislative’ power. Parliament in its constituent capacity can deal with State subjects. Part IXB read with Article 43B enhances the basic structure of the Constitution.

Prop up by the respondents

Per contra, the respondents supported the reasoning and conclusion reached by the High Court in the impugned judgment. A careful reading of Part IXB of the Constitution would show that the unfettered power of the State legislatures prior to the amendment has now been fettered by the provisions of Part IXB in several material particulars; for example, the  fixation  of  the  maximum  number  of  directors  of  co-operative societies; the reservation provision contained in 243ZJ; the duration of the term of office of elected members of the board of co-operative societies etc., relied strongly upon Articles 243ZI and 243ZT, making it clear that there is a direct assault on Entry 32, List II of the 7th  Schedule inasmuch as after one year, all State legislations that are contrary to the provisions of Part IXB are of no effect, and that an affirmative obligation is cast upon the States to enact legislation only in accordance with the restrictions contained in Part IXB.

Even  if  17  States thereafter  amend  their  laws  in  furtherance  of  the  Constitutional Amendment,  this  would  make  no  difference  to  the  constitutional position  if  in  fact  the  requisite  ratification  under  Article  368(2) proviso is lacking.  The validity of a constitutional amendment does not depend upon whether a State Government accepts it or whether a State Government challenges it. Insofar as MSCS are concerned, MSCS  are  inextricably entwined  with  co-operative  societies  and  the  97th CAA  would  never  have  been  enacted  for  MSCS alone. If this Constitutional Amendment  is  allowed  to  pass  constitutional  muster  without ratification, there  would  be  no  end  to  further  amendments which would  then  indirectly  rob  the  States  of  their  legislative  powers, changing a quasi-federal State into a unitary one.

Analysis, Application and Adjudication – Majority View

So far as co-operative societies are concerned, it can be seen that it is entirely a matter for the States to legislate upon, being the last subject matter mentioned in Entry 32 List II. When it comes to MSCS with objects not confined to one State, the legislative power would be that of the Union of India which is contained in Entry 44 List I. Co-operative societies as a subject matter belongs wholly and exclusively to the State  legislatures  to  legislate  upon,  whereas  MSCS  i.e.,  co-operative  societies  having  objects  not confined  to  one  State  alone,  is  exclusively  within  the  ken  of Parliament.

The question that arises is as to whether this principle can be said  to  have  been  infracted  by  inserting  Part  IXB  into  the Constitution of India so that the States’ legislative powers contained in Article 246(3) read with Entry 32 List II of the 7th Schedule can be said to have been affected in a significant manner.

It is clear that the exclusive legislative power that  is  contained  in  Entry  32  List  II  has  been  significantly  and substantially  impacted  in  that  such  exclusive  power  is  now subjected to a large number of curtailments.  Indeed, Article 243ZI specifically mandates that the exclusive legislative power contained in Entry 32 List II of the State Legislature is now severely curtailed as it can only be exercised subject to the provisions of Part IXB; and further, Article 243ZT makes it clear that all State laws which do not conform  to  the  restrictions  mentioned  in  Part  IXB  automatically come  to  an  end  on  the  expiration  of  one  year  from  the commencement of the Constitution 97th  Amendment Act. Part IXB of the Constitution leads to the result  that  though  Article  246(3)  and  Entry  32,  List  II  of  the  7th Schedule have not been ‘changed’ in letter, yet the impact upon the aforesaid articles cannot be said to be insignificant. On the contrary, it is clear that by curtailing the width of Entry 32, List II of the 7th Schedule, Part IXB seeks to effect a significant change in Article 246(3) read with Entry 32 List II of the 7th  Schedule inasmuch as the State’s exclusive power to make laws with regard to the subject of co-operative  societies  is  significantly  curtailed  thereby  directly impacting  the  quasi-federal  principle  contained  therein.  Quite clearly,  therefore,  Part  IXB,  insofar  as  it  applies  to  co-operative societies  which  operate  within  a  State,  would  therefore  require ratification  under  both  sub-clauses  (b)  and  (c)  of  the  proviso  to Article 368(2) of the Constitution of India.

The appellant argued that 17 out of 28 States had enacted legislations incorporating provisions of Part IXB, and therefore, they had impliedly accepted the restrictions laid down in the said Part. This argument merits only rejection as the procedure laid down in Article 368(2) proviso requires ratification of legislatures of  one  half  of  the  States  by  resolutions  to  that  effect.  This has admittedly not been done in the present case. Also, the argument that no State has come forward to challenge the 97th CAA does not take the matter any further. When a citizen of India challenges a constitutional amendment as being procedurally infirm, it is the duty of the Court to examine such challenge on merits as  the  Constitution  of  India  is  a  national  charter  of  governance affecting persons, citizens and institutions alike.

An important argument made by the appellant that even if it be held that Part IXB is constitutionally infirm qua co-operative societies operating within a State, it would yet operate qua MSCS and in Union territories which are not States. This necessarily brings us to whether the part dealing with MSCS in Part IXB can be severed from the part dealing with co-operative societies operating only within a State.

Article 243ZR of Part IXB makes it clear that all the provisions of this  part  which  apply  to  MSCS  would apply subject to the modification that any reference to a ‘Legislature of a State, State Act or State Government’ shall be construed as a reference to ‘Parliament, Central Act or the Central Government’ respectively.  It  is  clear  that  the  scheme  qua  MSCS is separate from the scheme dealing with ‘other co-operative societies’,  Parliament  being  empowered,  so  far  as  MSCS are concerned, and the State legislatures having to make appropriate laws laying down certain matters so far as ‘other

co-operative societies’ are concerned.  The effect of Article 246ZR is as if  MSCS  are  separately  dealt  with  in  a separate  sub-chapter  contained  within  Part  IXB. There is no doubt that after severance what survives can and does stand independently and is workable. Part IXB of the Constitution of India is operative insofar as MSCS are concerned. So far as co-operative societies within a Union territory are concerned, the same infirmity  as  is  found  in  the  main  part  of  the  judgment  continues insofar  as  the  legislative  subject  ‘co-operative  societies’  is concerned  under  Entry  32  List  II.  Therefore,  for  co-operative societies  which  have  no  ramifications  outside  the  Union  territory itself, Part IXB will have no application.

The judgment of the High Court is upheld except to the extent that it strikes down the entirety of Part IXB of the Constitution of India. It is declared that Part IXB of the Constitution of India is operative only insofar as it concerns MSCS both within the various States and in the Union territories of India.

97th CAA is unconstitutional on the whole – Dissenting judgment

In this case, the provisions of Article 243ZI to 243ZQ and Article 243ZT are undoubtedly afflicted with the vice of non-compliance with the procedure, which is mandatory. Resultantly, the said provisions must be treated as still born. These provisions are void in law.  The definition clause Article 243ZH clearly would have no meaning and would cease to be workable. The only question, which, therefore, arises is  when  provisions  of  the  amendment  to  the Constitution  are  found  to  be  void,  for  the  reason that the mandate of the proviso to Article 368(2) has not  been  complied  with,  whether  the  Doctrine  of Severability  could  be  applied  to  sustain  the  other provisions,  which  may  not  require  Parliament  to follow  the  procedure  under  the  proviso to  Article 368(2).

The question boils down to this:  Are the provisions of Article 243ZR and 243ZS independent provisions and workable? Both these provisions are entirely dependent upon the provisions contained in Article 243ZI to 243ZQ. This  is  for  the  reason  that  both  these  provisions expressly provide that the ‘provisions of this part’, which  clearly  means  the  foregoing  provisions,  which are contained in Article 243ZI to 243ZQ, are to apply in regard to multistate co-operative societies and to Union  Territories  with  the  modifications,  which  are indicated  therein.  There can be application and modifications of something which exists. There cannot be either, when the elaborate provisions are to be treated as not born. It  would  appear  to  be  that these  values  were  to  apply,  across  the  board,  to co-operative  societies  born  under  laws  made  by  the State  Legislatures,  as  also,  to  those  made  by Parliament.

Once the Court has painted the relevant  provisions,  which  are  the  substantial provisions (Article 243ZI to 243ZQ), with the brush of  unconstitutionality,  rendering  those  provisions, still  born,  it  would  appear  that  the  provisions contained  in  Article  243ZR  and  Article  243ZS  would not have the crutches without which these provisions cease to be workable and are impossible to sustain. The unconstitutional part, which is to be an integral part of Article 243ZR and Article 243ZS, must continue to exist, if the provisions in question are to bear life. Unless the  provisions,  which  have  been  found unconstitutional,  are  kept  alive,  Articles  243R  and 243ZQ are plainly unworkable. The appeals are dismissed.

Relevance and Remnants of 97th CAA

The judgment of the Supreme Court is on expected lines and it was no surprise.  In fact it was expected that the Supreme Court would dismiss the appeal filed by the Union of India in limine, but the relief given in the form of applicability to MSCS by the majority of Judges was only a surprise package.

Part IXB containing Arts. 243 ZH to 243 ZT is now held invalid and unconstitutional and operative only insofar as it concerns MSCS, both within the various States and in the Union territories of India. It is clear that the other part of amendment is not disturbed by the judgment and therefore the amendment made to Art.19 enabling the right to form

co-operative societies as fundamental right and insertion of new Art. 43B providing for ‘promotion of co-operative societies’ are valid.

The Union of India has fairly conceded before the Supreme Court that inserting Part IXB is ultra vires the Constitution for want of requisite ratification under Article 368(2) proviso and this has cost the 97th CAA. Though the Government has lost the main bout, as a consolation or concession it pleaded its applicability to MSCS, which found favour of the majority of the Judges.

It is relevant to note that the applicability of the 97th CAA to at least MSCS was never argued before the Gujarat High Court and no whisper was made on the afore line of defence. For the first time it was argued before the Supreme Court and applying the doctrine of severability, the Supreme Court concurred with the Government.

If it is the intention of the Government to bring the MSCS within the ambit of the 97th CAA, the Union of India need not resorted to a complicated task of constitutional amendment and it could have been done by amending the relevant provisions of the MSCS Act without much ado.

The amendments made by various States in pursuance of the 97th CAA are not in any way disturbed, because they have the approval of the respective State Legislature and assented by the Governors. Even where the States have carried out the amendments in the light of the 97th CAA, they are now at liberty to have a re-look to the amendments and ease out the rigorous conditions, like reservations of seats in the board, supersession of board even if the society is not assisted in any way etc.

Role and Relevance of the new Ministry

The judgment of the Supreme Court has come not one day sooner than expected especially on the formation of a separate Ministry of Co-operation.  The Ministry is formed apparently with a view to giving a fillip to the co-operative movement and reforming the functioning of co-operative societies. Until now, the subject was dealt with by the Ministry of Agriculture. It administered the MSCS Act. The opposition parties cry foul on formation of the Minister of Co-operation and allege that the Ministry would transgress its limits and would encroach upon the States and will undermine the power of the State Governments over co-operatives.  This judgment is a warning bell to the Union of India to restrict its playing arena. 

Hence, a pronouncement on the scope of Parliament's power over co-operative societies translates into a pronouncement on the contours of the newly created Union Ministry of Co-operation. So, going by the Constitutional scheme as explained in the Supreme Court judgment, the executive power of the Union Ministry of Co-operation is with respect to MSCS alone.

However, the new Ministry has to play a pro-active role for the upliftment of co-operative sector.  If the States are left to their whims, there will always be reluctance in bringing co-operative flavour in societies and elections would be postponed indefinitely and the societies would continue to be with the officials of the Department.  Strict supervision like timely audit and inspection would certainly be lacking.  Irregularities in societies would not be condemned but condoned.   There is no grumbling that the reforms brought by the 97th CAA were not in the interest of the movement and as a matter of fact more rigour is needed on the reforms.  The new Ministry has the option of re-enacting the amendment with a two-thirds majority in Parliament and obtaining the ratification of not less than 50% of the State legislatures.  This is quite possible for the Union of India. The new Ministry is expected to work on it and this will be a grand opening for the Ministry.

Constitutional Dimensions of Spoils System

in Public Employment under the State

 (By O.V.Radhakrishnan, Senior Advocate, High Court of Kerala)

‘Spoils System’ known in popular parlance as ‘patronage system’ is the system of spoils-sharing.  Spoils-sharing is a system prevalent where the leaders of the ruling party considered it their exclusive right in giving public office and Government positions to its supporters, friends and relatives as a reward for their working towards victory and the exercise of such power was within their exclusive imperium.  The spoils system was a common feature in the United States during 17th and 18th Centuries. In State of Bihar v. Upendra Narayan Singh¹ the Supreme Court has referred to the despotic practice of the spoils system. It was Jefferson who implemented the spoils system to a large extent and Jackson brought it to its full development as an engine of party warfare in the United States.  A brief idea of the phenomenon of spoils system is obtained from a few observations of the Supreme Court in Upendra Narayan Singh’s case:

“The phrase ‘spoils system” was derived from the statement of Senator W.L.Marcy of New York, in a speech in the Senate in 1832.  Speaking of the New York politicians, he said: “They see nothing wrong in the rule that to the victor belong the spoils of the enemy.”  By 1840, the spoils system was widely used in local, State and Federal Governments.  As a result of this, America fell far behind other nations in civil service standards of ability and rectitude.”

“When William Henry Harrison became President in 1841, the practice of appointing political followers reached its pinnacle.  As the Government grew, a serious need for qualified workers developed.  After the Civil War, pressure started building up for reforms in recruitment to civil services.  The gross scandals of President Ulysses S.Grant’s administration lent credence to the efforts of reforms George W. Curtis, Dorman B. Eaton and Carl Schurz.  In 1871, Congress authorised the President to make regulations for appointment to public services and to constitute Civil Service Commission for that purpose.  However, this merit system ended in 1875 because the Congress failed to provide funds for the same.” “In 1881, a spurned office-seeker shot and killed President James A. Garfield.  His death provoked further public outcry for civil service reform and paved way for passage of a Bill introduced by Senator George H. Pendleton of Ohio.  His Bill became the Civil Service Act of 1883 and re-established the Civil Service Commission.  The Act rendered it unlawful to fill various federal offices by the spoils system.  Since then, much has been done to avoid the evils of the system.  Federal civil service legislation has been greatly expanded.  Many Municipalities and States have made training and experience as a condition precedent for appointment to public offices.” 

“In the territories of India ruled by Britishers also a large chunk of jobs went to the faithfuls of Britishers who were considered fit for serving British interest.”

   Spoils system was blocking the progress and excellence of administration of the Government.  The spoils system inevitably brought out incompetence and maladministration debilitating the efficient functioning and crippling effective discharge of the business of the Government. The Founding Fathers of our Constitution taking into account the menace of spoils system which fostered the evil on a large scale, placed broad-spectrum ban on spoils system in the public employment to guard against the danger of denial of equality of opportunity in matters of appointment to any office under the State.

Great safety standards are constitutionally inscribed in Article 16(1) to protect equality of opportunity in matters of public employment from the virus of spoils system.  Article 16(1) issues a positive command that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State which is the strongest safeguard against denial of equality of opportunity in public employment.  Equal protection means the right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed².  Article 16(1) is a positive constitutional command to banish spoils system which inevitably blighted the opportunity for appointments to any office or of any other employment under the State.  The concept of equality and equal protection of the laws guaranteed by Article 14 encompasses social and economic justice in a political democracy.  Article 14 lays down the general rule of equality and Article 16(1) is an incident of the general concept of equality enshrined in Article 14 in the matter of appointment and employment under the State.  The Government is not entitled to pick and choose from amongst a number of candidates offering themselves for employment under the Government.  It further guarantees a “right to be considered” on merit for the post.  Recruitment shall commence by open advertisement so as to enable all eligible persons to compete for selection on merit.  Recruitment must be carried out on the basis of merit system and not on political loyalties or practising nepotism by parties in power to strive to meet the highest standards of excellence in a service or post in which he or she gets appointment.

Reservation in appointments in favour of backward class of citizens in accordance with Article 16(4) as a positive facility and opportunity to such class to improve excellence in a service or post is an instance of classification permitted by Clause (1) of Article 16. Article 16(4) softened the rigour of legal equality and gave practical content of equality to provide distributive justice in favour of unequals to hold an office or post under the State in the democratic governance. It is a protective discrimination in favour of the disadvantaged segments of the society. It is a transitory measure to subserve and elongate constitutional objective and public policy of socio-economic justice as envisaged in Article 16(4) and Article 335 read with Articles 14 and 16(1) as also Article 38 and Article 46 and of all other cognate provisions of the Constitution. 

Services under the Union and the States are included in Chapter I Part XIV of the Constitution.  Article 309 relates to recruitment and conditions of services of persons serving the Union or a State. The recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or a State are to be regulated by Acts of the appropriate Legislature subject to the provisions of the Constitution.  The Proviso under the Article empowers the President or the Governor of a State to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature and any rules so made shall have effect subject to the provisions of any such Act. 

Chapter II of Part XIV of the Constitution relates to Public Service Commission.

Article 315 mandates that there shall be a Public Service Commission for the Union and a Public Service Commission for each State.  Under Article 320 (1) of the Constitution, it shall be the duty of the Union and the State Public Service Commissions to conduct examination for appointment to the services of the Union and the services of the State respectively. The examinations conducted by the Public Service Commission can be selective or competitive in nature.  It has been now settled that the best method of assessing the merit of candidates by open examination is to combine written test with an interview or viva voce test.  The ranked list is prepared in the order of merit and each one of the candidate included in the ranked list stands on a separate level of competence as compared with another.

Consultation with the Union Public Service Commission or the State Public Service Commission, as the case may be, is mandatory on all matters relating to methods of recruitment to civil services and for civil posts, on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers under Article 320 (3)(b) of the Constitution.  It shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them.  Our Constitution has spread protective umbrella for securing and reassuring equality before the law in matters of public employment.  Any action based on patronage system or spoils-sharing inconsistent with Part III and Article 320 of the Constitution is prohibited and is unconstitutional.  Article 320 tailored as it is to the job seeker’s concerns, meets the practical desiderata and assures salutary merit system in public services. Necessarily, and perforce, equal opportunity of appointment to a post or office is available to all citizens and constitutionally entitles them to consider their claims for employment/appointment to an office or post on merit basis.  Spoils system or patronage system which results in serious and atrocious consequences is prohibited by force of the constitutional command combined in Articles 14, 16(1) and 320 of the Constitution of India. 

It is quite clear that merit system received accreditation and confirmation under the Constitution. Article 320 of the Constitution provides an effective machinery displacing nepotistic recruitment policy for ensuring merit system in public employment which is jealously guarded in the Constitution.

In Supreme Court Advocates-on-Record Association v. Union of India³ a Constitution Bench of the Supreme Court held:

“It is necessary to appreciate that the Constitution does not envisage the “spoils system” (also known as the “patronage system”) wherein the political party which wins an election gives Government positions to its supporters, friends and relatives as a reward for working towards victory and as an incentive to keep the party in power.”

“It would be of utmost importance therefore, to shield judicial appointments from any political-executive interference to preserve the “independence of the judiciary” from the regime of the spoils system.  Preserving primacy in the judiciary, in the matter of selection and appointment of Judges to the higher judiciary would be a safe way to do so.”  It has been reasserted therein that “The expectation from the judiciary to safeguard the rights of the citizens of this country can only be ensured by keeping it absolutely insulated and independent from the other organs of governance. In our considered view, the present status of the evolution of the “civil society” in India does not augur the participation of the political-executive establishment in the selection and appointment of Judges to the higher judiciary, or in the matter of transfer of Chief Justices and Judges of one High Court to another.” 

Another facet of the unconstitutional dimension of public employment under the State is the policy of seeking Police report on the political faith of candidates for appointment and acting upon it, if the report reveals the political faith, beliefs, association and the past political activity of the candidate for public employment.  Article 16(2) of the Constitution brings out what is guaranteed under Article 16(1) in a negative form.  Article 16(2) prohibits discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, for employment or office under the State.  The word ‘only’ after the word ‘grounds’ shows that clause (2) of Article 16 applies only where a citizen is ineligible for a certain public employment solely on the ground of his religion, race etc., mentioned in clause (2) and not on ground outside the categories of grounds specifically mentioned therein.Inevitably, denial of employment on grounds other than those mentioned in Article 16(2) falls outside the discrimination prohibited by clause (2).  Necessarily, in a case where employment is denied on the ground of political faith or on past political activities, the fundamental right guaranteed under Article 16(2)  of the Constitution is unavailing.  In that context, the Supreme Court condemned the policy of acting on Police report based on the political faith, beliefs, association and the past political activity of the candidate for public employment as introducing ‘McCarthyism’ into India which is obnoxious to the whole philosophy of our Constitution.

 ‘McCarthyism’ is the practice of making accusations of subversion or treason, especially when related to communism⁴. The term refers to U.S. Senator Joseph McCarthy (R-Wisconsin).  The practice has its origin in the period in the United States known as the Second Red Scare, lasting from the late 1940s through the 1950s.⁵   It was characterized by heightened political repression and a campaign spreading fear of communist influence on American Institutions and of espionage by Soviet agents.⁶  ‘McCarthyism’ began its decline due to the stiff opposition from the U.S. Supreme Court led by Chief Justice Earl Warren⁽⁶⁾⁽⁷⁾ and helped to bring to an end to ‘McCarthyism’ as a result of the series of rulings of the Warren Court.^(8)(9)(10)

In State of M.P. V. Ramashanker Raghuvanshi¹¹ the Supreme Court was dealing with a case where the termination of the services of a teacher founded on a report made by the Superintendent of Police that the teacher was not a fit person to be entertained in Government service as he had taken part in ‘RSS and Jan Sangh activities’.  The Supreme Court expressing its jural concern about the devastating results of such a policy, contextually posed the question ‘Is public employment reserved for “the cringing and the craven” in the words of Mr.Justice Black of the United States Supreme Court?’ and held:

“We think it offends the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual’s service.  To hold otherwise would be to introduce ‘McCarthyism’ into India.  ‘McCarthyism’ is obnoxious to the whole philosophy of our Constitution.  We do not want it.”

“We are not for a moment suggesting that even after entry into government service, a person may engage himself in political activities.  All that we say is that he cannot be turned back at the very threshold on the ground of his past political activities.  Once he becomes a government servant, he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution”.

A resume of the discussion leads to the logical conclusion that although there is no express provision in any statute or rules, regulation and by-law prohibiting spoils system, to follow ‘merit system’ in matters of public employment is a constitutional imperative which is non-negotiable.  Resort to spoils system on any pretext or for any ostensible goal is unconstitutional and impermissible.  Likewise, much to the constitutional consternation about non-inclusion of ‘political faith’ in Article 16(2) as a ground of discrimination for rendering a citizen ineligible for employment or office under the State, it emerges as pronounced inequality meted out to citizens when political authoritarianism, through denial of employment to public services for their past political activities, holds the fundamental rights of citizens guaranteed under Articles 14 and 16(1) of the Constitution to ransom for political reasons.  Such a practice, if and when adopted would offend equality of opportunity in matters of public  employment and its concomitant right to livelihood guaranteed under Articles 14, 16(1), 19(1)(g) and 21 of the Constitution and would fall within the mischief of ‘McCarthyism’ which is anathema to and is tabooed by our Constitution.

Destined to Die in Custody

Father Stan Swamy -- Victim of Judicial Apathy

(By P.Rajan, Advocate, Thalassery)

Tribal activist, Octogenarian, Fr.Stan Swamy’s death in a Mumbai hospital as an under-trial prisoner is a rare but disturbing example of antagonism of the investigating agency coupled with insensitive approach of the judicial system. He was arrested under the Unlawful Activities(Prevention) Act in October 2020 in connection with the Bhima Koregaon case from Ranchi and ever since he was in jail, suffering from multiple age-related ailments besides parkinson’s disease. The trial court had turned down his request for bail presumably following the rigor of provision for granting bail under the UAPA Act supported by the apex court’s judgment of 2019 in Zahoor Ahmad Shah Watali case (2019 (2) KLT OnLine 3012 (SC). The High Court also was reluctant to give him relief of liberty, subjected to extended detention. Strangely, due to denial of basic requirements by the jail authorities, even to consume liquid food, he had to approach the High Court for a straw and sipper, as his health was deteriorating.

The fact that his advanced age and frail frame caused untold physical hardships and difficulties for his remand life were evidenced by successive medical reports. Prosecution as often do, opposed his request for release was denied by the Court and it had failed to apply its judicial mind as the plea for bail was mainly on humanitarian grounds. There are few others also languishing in jail in the same crime aged more than sixty, suffering from multiple health issues exacerbated by prolonged incarceration.

The Supreme Court’s judgment delivered in 2019 under the UAPA Act is worrisome as same is the recent case law on the subject by the top court, to be followed by the lower courts. This decision has made a new a doctrine to say an accused charged under the UAPA Act must be in custody throughout the period of trial, till the final verdict, even if the charge appears to be suspicious, eventually proved to be groundless. Across the country dissenting voices,protests, of late are on the increase so also registration of cases under the UAPA Act or under the Indian Penal Code, of Sedition. Dilution of the rigor of the provision of bail under the UAPA Act is the prerogative of the executive, change is a wishful thinking but the case law declared by the Supreme Court can be subjected to reconsideration, as rampant misuse of draconian laws are on the rise due to extraneous considerations without considering the legal requirements to register crimes leading to arrest of the suspects, leading to prolonged incarceration.

Section defining Sedition, 124A I.P.C. is British made meant to apply at the will and pleasure of the then Rulers against us when freedom movements across the country were routine. But UAPA Act is promulgated after independence being used at the drop of a hat due to political reasons even. 

It is known to all that Fr.Swamy was the voice of voiceless, stood up for those who were denied justice, mainly to the backward class. Denial of fundamental rights to the backward class, upbringing of the downtrodden was the sole motto  of the father all along his five decades’dedicated service to the under privileged. There are several under trial prisoners in different states, charge sheeted under the provisions of UAPA Act and even Keralite Abdul Nazer Mahdani with prosthetic limb is behind the bars in Bangalore, awaiting final verdict for long. In all such cases the express bar for bail defined under section 43D(5) of the UAPA applied by the Court holding that proof of innocence is the duty of the accused even when request for bail is made. Period of remand might be more than the maximum jail sentence on conviction, in certain cases unless after few years of jail life bail is granted to the accused. Courts should be considerate while considering request for bail as filing of charge sheet is no proof of guilt. There is no law in the land like victim’s compensation scheme to the solace of the accused persons who remained in prison for years and finally found to be innocent of the charges. As the Bombay High Court on hearing the death of Fr.Swamy from the Bar expressed shock, needless to say that anguish was ephemeral. Personal liberty is paramount and courts should be guided by the principle of law based on constitutional mandate- bail is the rule especially to the aged and ailing, jail is an exception, charge or allegation what may- speedy trial and timely verdict is a distant dream in the largest republic of the world, even now.  The inspiring words due to stressful days in prison, of  Sri.Swamy – We will still sing in Chorus – a caged bird also can sing should not fall on deaf ears.

                  You can force the people to obey

                   You can’t force them to understand

                                                                         -- Confucius

Jaleel v. Muhammed Shafi(2021(3) KLT 167) Needs Re-visitation

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

Maintaining greatest respect to the eminent and knowledgeable Judges constituting the Division Bench that decided Jaleel v. Muhammed Shafi reported in 2021(3) KLT 167, I am of the humble opinion that it needs re-visitation. 

A Minister in the Cabinet of a State is appointed by the Governor of the State under Article 164 of the Constitution of India.  Ministers shall hold office during the pleasure of the Governor.  That a Minister is a public servant cannot any longer be disputed in view of the authoritative pronouncement of the Supreme Court in Karunanidhi’s case.  Nevertheless is a Minister holding a post? Obviously not.  No constitutional functionary is holding a post but a prestigious position of privilege, power and responsibility.  Holding of a “post” arises only in a service.  For instance, our Hon’ble Judges do not hold a post but a position envisaged under the Constitution of India.  Their pay and allowances are prescribed under the Schedules to the Constitution of India and their removal, is not akin to the removal from a post.  It is therefore, clear that a Minister in a State Cabinet is not a person holding a post.

The Kerala LokAyukta, 1999 provides for appointment and functions of authorities for making enquiries into any action taken by or on behalf of the Government of Kerala relatable to matters specified in List II or List III of the VIIth Schedule to the Constitution of India.  Section 14 of the Kerala LokAyukta Act provides that where, after investigation into a complaint the LokAyukta or an UpaLokAyukta is satisfied with the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him,the LokAyukta can make a declaration to that effect.  The pertinent question therefore, that arises is can it apply to a person, who does not hold a post, and the complaint is in respect of actions taken by or on behalf of the Government of Kerala.  My respectful submission is since a Minister does not hold a “post” and his actions are collectively taken on behalf of the Government of Kerala, any direction by the LokAyukta that he shall vacate the office, is beyond the provisions of the Kerala LokAyukta Act.  The significance and the import of the word “post” and the wordings in the preamble of the Act that action taken by or on behalf of the Government of Kerala clearly in my humble submission restrict the power of the LokAyukta to suggest or recommend the resignation of a Minister appointed by the Governor under Article 164 of the Constitution of India.

The facts of the case decided by the Division Bench need no reiteration. A Minister in the Kerala Cabinet was accused of favouring an applicant to a post in a State owned Corporation.  When a controversy was raked up it appears the person concerned resigned the post. Nevertheless a complaint was made before the Lok Ayukta that there was corruption in the action of the concerned Minister. The Lok Ayukta therefore, found that there was an allegation which stood established. It however, omitted to notice that there was no grievance to the complainant as the appointee had already vacated the office when objections were raised.  It may be noted that the Government of Kerala had passed an order on 08.10.2018 making the appointment.  This can only be after the Cabinet approved the appointment as the post involved was that of a General Manager.  In the report a clear finding has been entered by the LokAyukta that the Chief Minister also was a party to the approval of the appointment. 

Surprisingly in the declaration made by the LokAyukta purportedly under Section 14 of the Act it was confined only to the Minister concerned and not a word is stated about the Chief Minister.  This, in my humble and respectful submission,militates against the wording in the preamble of the Act that is mainly concerned with the action taken by or on behalf of the Government of Kerala.  In the report by the LokAyukta there is no clear indication that the aforesaid words of great import, have been considered with due application of mind.  The significance and expression of the word “post” also has not been taken note of by the LokAyukta.  A constitutional functionary cannot be relegated to the position of a holder of a “post”.

The aforesaid crucial issue does not appear to have been examined by the Division Bench as well.  The interplay of Sections 12 and 14 also does not appear to have received the attention it deserved from the Hon’ble Division Bench. 

The conclusions of the Division Bench regarding findings of facts and the scope of judicial review under Article 226 of the Constitution of India are unexceptionable and irrefragable.  With great respect to the Hon’ble Judges their view represents the correct position in law.

However, the observations in para 21 of the judgment that a declaration under Section 14 of the Kerala LokAyukta Act could be submitted only after an investigation, if right, it must necessarily follow that the investigation shall not be reduced to a formal enquiry but requires a detailed probe as an elected representative of the people will have to vacate his office based on the investigation.  Such an investigation cannot be a formal enquiry as found by the Division Bench but should be a full-fledged one like in the nature of a criminal complaint as it involves the credibility, prestige and acceptability of an elected representative.  I am afraid the view of the Division Bench that the expression “investigation” in the Act contemplates only a formal enquiry, is beset with very serious consequences to holders of constitutional positions.  Under the Constitution as already pointed out above, only the Governor can direct a Minister to resign and I respectfully repeat my doubt whether a Minister, who is not holding a “post” can be directed by the Lok Ayukta to vacate the office at all.

Since the provisions of the Kerala LokAyukta Act, 1999 will ever remain green, current and relevant in public life, a correct and complete interpretation of its provisions is warranted.

I would therefore, humbly submit that the decision needs a second look. Trust my views are not just critical but also didactic.

Electronic Filing: Towards an Inclusive Legal Profession

(By Thulasi K. Raj, Advocate, High Court of Kerala)

In early May 2021, the High Court of Kerala notified the Electronic Filing Rules for Courts (Kerala), 2021. The Rules have prescribed for electronic filing of cases, by dispensing with physical filing to a great extent. According to Rule 10, exemption from e-filing can be sought in certain circumstances, for example due to privacy reasons or when the size of the files is too large.Rule 5 prescribes procedure for filing and Rule 6 provides for digital signature. The Rules lay down detailed procedure regarding filing and service of notice through electronic means.

The Rules are criticized by many and I propose to argue why the critique is misconceived. The first objection against E-filing Rules is that the Rules have a disproportionate impact on elder lawyers who are less familiar with technology than the young. It is said that while young lawyers can easily adopt to the new technology, the others will not be. This objection, however, overlooks the demands of a pandemic and fast-changing technology. There was a time in the profession when stenographers were unfamiliar with the computer and used typewriters for typing and printing pleadings. At an earlier time, causelists were not available online. But soon thereafter,when digital technology embraced the legal profession as well, adjustments and compromises were made to make the system efficient and useful. The virtues of e-filing such as efficiency, swiftness, reduction of paper waste, easy and ready access to files and comprehensive database must be acknowledged.

The problem of unfamiliarity is inherent in any new proposal. For example, when the High Court adopted video conferencing for hearings, there was an initial hesitation. However, this was largely overcome in time with training, practice and assistance from technically proficient persons. Likewise, more training facilities and assistance of technically proficient personnel must be extended to lawyers who find it difficult to adopt to the technology. There must be special training sessions for clerks who have been conducting physical filing so far, so that their livelihood will not be in jeopardy. These proposals are made with a view to making the E-filing system more accessible, inclusive and equitable.

The second objection against E-filing is the ‘irrelevance argument.’ The objection is that not only lawyers based in Kochi, but lawyers from any part of the State will be easily able to file pleadings and the ‘relevance’ of High Court lawyers will be lost. This is unfortunately a narrow-minded view. The legal profession must always aspire to be more inclusive rather than exclusionary. Clients choose lawyers on the basis of very many factors including familiarity, talent, success rate etc. If a lawyer has the necessary talent, hard work and determination to succeed in the profession, it is likely that they will make their own space. Confining the benefits of filing to a certain limited classwithinlawyers is not the way to achieve relevance in the profession. There are ethical and legal ways to do it. Excluding many people from the purview of the system and reserving filing to a select fewis discriminatory. It puts persons from rural backgrounds or with less financial resources unable to reside permanently in Ernakulam at a disadvantage.

The third objection against the digital system is that lawyers who are one of the stakeholders were not heard before adopting the Rules. We must bear in mind that the Rules are adopted at a time when the nation is facing an unprecedented pandemic. The Rules were necessary to ensure some mechanism is in place for filing of cases. Filing could not have been suspended for an indefinite time until comprehensive hearings were made. The adoption of the Rules was necessitated by these circumstances. Even if there is substance in the objection of non-hearing, resisting E-filing altogether is not the solution for an alleged procedural irregularity. Lawyers can mobilise efforts, in collaboration with the High Court to familiarise themselves with the Rules. Suggestions must be made as to making the portal user friendly and enhancing usability. Problems in the functioning of the portal can be adequately pointed out to rectify them. The efforts must be towards this direction.

The fourth objection against E-filing is that of access. It is said that lawyers are not equipped with scanners or a well-functioning internet for a smooth transition to E-filing. These are, however, not problems created by E-filing, but larger issues of economic resources, mobility and digital access. Many of these problems can be reduced – if not eliminated- with adequate measures. For example, lawyers could mobilise to identify those needing financial assistance and enable voluntary contribution for devices or digital technology. The idea is to identify the potential problems and move towards resolving them instead of opposing e-filing.

Now, this is not to say that the E-filing system is free from problems. It does suffer from drawbacks, just like any other form of digital technology. The portal is often non-operative and takes several minutes to load. It does not contain a provision for clerks to create accounts and file cases. The Rules must expand the scope of E-filer currently confined to advocates and parties to include clerks. The interface could be more user friendly. However, all these problems are curable if properly considered. Lawyers can identify surrounding issues associated with e-filing and the system must be continuously reformed on the basis of suggestions.

I have argued that both legally and ethically, there is potential in the E-filing Rules to make both access to justice and to the legal profession diverse and inclusive. The continued opposition to E-filing serves no meaningful purpose. Physical filing at a time of pandemic might put the clerks and lawyers at imminent risk. The Kerala High Court belongs to everybody. Let us keep it that way. That is what the law requires. That is also what decency demands.