Case: Ashok Kumar Gupta  Vs. State Of U.P.


Decision:
0[ds]26. It is now settled legal position that social justice is a fundamental right and equally economic empowerment is a fundamental right to the disadvantaged. Article 51A(j) enjoins that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activities so that the nation constantly rises to higher levels of endeavour and achievement. Equality of status and dignity of the individual will be secured when the employees belonging to Dalits and Tribes are given an opportunity of appointment by promotion in higher echelons of service so that they will have opportunity to strive towards excellence individually and collectively with other employees in improving the efficiency of administration. Equally they get the opportunity to improve their efficiency and opportunity to hold offices of responsibility at hierarchicalD.T.C. case, it was observed in para 275 that "the term efficiency is an elusive and relative one to the adept capable to be applied in diverse circumstances. If a superior officer develops liking towards a sycophant, though corrupt, he would tolerate him and find him to be efficient and pay encomiums and corruption in such cases stand no impediment. When he finds a sincere, devoted and honest officer to be inconvenient, it is easy to cast him/her off by writing confidential reports with delightfully vague language imputing to be `not up to the mark, `wanting public relations etc. At times they may be termed to be "security risk" (to their activities). Thus they spoil the career of the honest, sincere and devoted officers. Instances either way are galore in this regard. Therefore, one would be circumspect, pragmatic and realistic to these actualities of life while angulating constitutional validity of wide, arbitrary, uncancalised and unbridled discretionary power of dismissal".The Constitution, unlike other Acts, is intended to provide an enduring paramount law and a basic design of the structure and power of the State and rights and duties of the citizens to serve the society through a long lapse of ages. It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future. It contains a framework of mechanism for resolution of constitutional disputes. It also embeds its ideals of establishing an egalitarian social order to accordand political justice to all sections of the society assuring dignity of person and to integrate a united social order assuring every citizen fundamental rights assured in Part III and the directives in Part IV of the Constitution. In the interpretation of the Constitution, words of width are both a framework of concepts and means to achieve the goals in the Preamble. Concepts may keep changing to expand and elongate the rights. Constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth. The intention of the Constitution is, rather, to outline principles than to engrave details. In State of Karnataka v. Appa Balu, (1995) Supp.(4) SCC 469 atge Bench of this Court, to which one of us, K. Ramaswamy, J. was a member, while interpreting Articles 17 and 15(2) and the Civil Rights Protection Act, held that "(J)udiciary acts as a bastion of the freedom and of the rights of the people. Jawaharlal Nehru, the architect of Modern India as early as in 1944 stated that the spirit of the age is in favour of equality though the practice denies it almost everywhere, yet the spirit of the age triumphs. The judge must be atune with the spirit of his/her times. Power of judicial review, a constituent power has, therefore, been conferred upon the judiciary which constitutes one of the most important and potent weapons to protect the citizens against violation of social, legal or constitutional rights. The judges are participants in the living stream of national life, steering the law between the dangers of rigidity on the one hand and formlessness on the other hand in the seemless web of life. The great tides and currents which engulf the rest of the men do not turn aside in their course and pass the judges idly by. Law should subserve social purpose. Judge must be a jurist endowed with the legislators wisdom, historians search for truth, prophets vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections. Therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. The judge must also bear in mind that social legislation is not a document for fastidious dialects but a means of ordering the life of the people. To construe law one must enter into its spirit, its setting and history. Law should be capable of expanding freedom of the people and the legal order can, weighed with utmost equal care, be made to provide the underpinning of the highly inequitable social order. The power of judicial review must, therefore, be exercised with insight into social values to supplement the changing social needs. The existing social inequalities or imbalances are to be removed and social order readjusted through rule of law, lest the force of violent cult gain ugly triumph. Judges are summoned to the duty of shaping the progress of the law to consolidate society and grant access to the Dalits and Tribes to public means or places dedicated to public use or places of amenities open to public etc. The law which is the resultant product is not found but made. Public policy of law, as determined by new conditions, would enable the courts to recast the changing conceptions of social values of yesteryears yielding place to the changed conditions and environment to the common good. The Courts are to search for light from among the social elements of every kind that are the living forces behind the factors they deal with. By judicial review, the glorious contents and the trite realisation in the constitutional words of width must be made vocal and audible giving them continuity of life, expression and force when they might otherwise be forgotten or ignored in the heat of the moment or under sway of passions or emotions remain aroused, that the rational faculties get befogged and the people are addicted to take immediate for eternal, the transitory for the permanent and the ephemeral for the timeless. It is in such surging situation the presence and consciousness and the restraining external force by judicial review ensures stability and progress of the society. Judiciary does not forsake the ideals enshrned in the Constitution, but makes them meaningful and makes the people realise and enjoy the rights.48. The Judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs; make meaningful the right to life and give effect to the Constitution and the will of the legislature. This Court as the vehicle of transforming the nations life should respond to the nations needs, interpret the law with pragmatism to further public welfare to make the constitutional animations a reality and interpret the Constitution broadly and liberally enabling the citizens to enjoy the rights.It is seen that Article 13(2) envisages a situation where the State action, be it legislative or executive, violates the fundamental rights in Part III of the Constitution; such law is declared as void but when the previous overruled decision and the new rule laid down by the Court as a stare decisis operates prospectively from a given date, namely, either the date of the judgment or extended date. Judgment or order is not legislative act which is void under Article 13(2) but judicial tool by which the effect of the judgment was given. Therefore, the judgment of this Court in Mandals case declaring that Rangachari ratio did not correctly interpret Articles 16(1) and 16(4) of the Constitution is a declaratory law under Article 141 of the Constitution. It is true that Article 13(1) deals with preconstitutional law and if it is inconsistent with fundamental rights, it becomes void from January 26, 1950, the date on which the Constitution of India came into force and if alaw governed by Article 13(2) violates fundamental rights, it becomes void from its inception. Either case deals with statute law and not the law declared by this Court under Article 141 and directions/orders under Article 142.It would be seen that there is no limitation under Article 142(1) on the exercise of the power by this Court. The necessity to exercise the power is to do "complete justice in the cause or matter". The inconsistency with statute law made by Parliament arises when this Court exercises power under Article 142(2) for the matters enumerated therein. Inconsistency in express statutory provisions of substantive law would mean and be understood as some express prohibition contained in any substantive statutory law. The power under Article 142 is constituent power transcendental to statutory prohibition. Before exercise of the power under Article 142(2), the Court would take that prohibition into consideration before taking steps under Article 142(2) and we find no limiting words to mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase "complete justice" engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or crabbed within any limitations or phraseology. Each case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysis, it is for this Court to exercise its power to do complete justice or prevent injustice arising from the exigencies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does not arise. As held earlier, the power under Article 142 is a constituent power within the jurisdiction of this Court. So, the question of a law being void ab initio or nullity or viodable does not arise.61. Admittedly, the Constitution has entrusted this salutary duty to this Court with power to remove injustice or to do complete justice in any cause or matter before this Court. The Rangachari ratio was in operation for well over three decades under which reservation in promotions were given to several persons in several services, grade or cadre of the Union of India or the respective State Governments. This Court, with a view to see that there would not be any hiatus in the operation of that law and, as held earlier, to bring about smooth transition of the operation of law of reservation in promotions, by a judicial creativity extended the principle of prospective overruling applied in Golak Nath case in the case of statutory law and of the judicial precedent in Krunakarans case and further elongated the principle postponing the operation of the judgment in Mandals case for five years from the date of the judgment. This judicial creativity is not anathema to constitutional principle but an accepted doctrine, as an extended facet of stare decisis. It would not be labelled as proviso to Article 16(4) as contended for.In S.P. Sampat Kumar v. Union of India and others, JT 1986 SC 996(2) : 1987(1) SCC 124, while noticing that the Administrative Tribunal Act suffered from constitutional invalidity, instead of declaring the Act as invalid, declared that its invalidity would be removed by making necessary suggested amendments thereto so that the law will become consistent with the Constitution. In St. Stephen College case (supra), while holding that the orders issued by Delhi University were violative of Article 30(1) of the Constitution, this Court declared that admission by the minority institutions in the ratio of 50:50 between minority students and the general students was constitutional which is another facet of judicial creativity. In Pannalal Bansilal Pitti v. State of Andhra Pradesh, JT 1996(1) SC 516 : 1996(2) SCC 498, this Court, instead of declaring that abolition of hereditary trusteeship of the founder of the temple to manage a temple was unconstitutional, declared the law reading it down that the institutions would be managed by a Committee of theand hereditary trustees presided over by the hereditary trustee so as to be conducive to proper and efficient management of the endowment or institutions. At the same time, this Court upheld the power to remove hereditary trustees who mismanaged the endowment or committee for acts of misfeasance or malfeasance, as valid. It is settled legal principle of reading down the provisions of a statute by so interpreting them as to make the Act consistent with the constitutional principles. Instances, therefore, are many under which this Court has evolved the appropriate principle to sustain the legislative or executive actions consistent with the constitutional philosophy or principles. Mahendra Lal Jaini v. The State of Uttar Pradesh and others, 1963 Supp.(1) SCR 912, relied on by the petitioners, is of no assistance to the facts of this case. Therein, the distinction between theal law which violated the fundamental rights and the effect thereof under Article 13(1) and 13(2) was considered. The doctrine of eclipse was pressed into service and explaining the circumstances in which the voidity of thepreconstitutional law andthe validity of thelaw was declared, this Court held that thelaw violating the fundamental rights wasand that, therefore, was void from its inception, while the preconstitutional law is effective from inception but its voidity supervened when the Constitution came into force. Therefore, it would be void only from January 26, 1950 and the previous operation of the law remained unaffected. The ratio therein, therefore, has no application to the facts in this case. Similarly, the ratio in Atam Prakash v. State of Haryana and others, 1986(2) SCC 249 is equally inapplicable to the facts of this case. Therein, it was declared, that the justification of right ofto different classes enumerated in Section 15 of the Punjab Presemption Act was declared ultra vires and inconsistent with the modern concept of equality. Therefore, it was held that the law was not valid. Equally, the ratio in Waman Raos case (supra), is equally inapplicable. Therein, it was held that alaw violating the fundamental rights wasvoid but it remained valid under the protective umbrella of Schedule IX of the Constitution and, therefore, though it was void, it cannot be declared to be void and remained to be valid law. But aKesavananda Bharati law which did not receive the protective umbrella of Schedule IX is void from its inception. We are not concerned, as stated supra, with statute law in this case. Under those circumstances, the ratio therein is inapplicable to the facts in this case. A.R. Antulays case is inapplicable to the facts in this case. Therein, though this Court had directed under Article 142 trial of the appellant by a High Court Judge, it was held that such direction was inconsistent with fundamental rights of equality under Article 21 read with Article 14 with the trial of other similarly circumstanced offenders by a properly constituted Court with a right of appeal while the order passed under Article 142 denied him of the equality of trial process. This Court accepted that contention and held that the direction issued on earlier occasion was invalid in law. In that context, the observations came to be made in para 50. The ratio therein is also inapplicable to the facts in this case. In Delhi Judicial Service Association v. State of Gujarat, JT 1991(3) SC 617 : 1991(4) SCC 406 at 452, para 37, it was held that the powers under Article 32, 136, 141 and 142 are basic structures of the Constitution and cannot be curtailed by statute law. Equally, the same position was reiterated in para 51 therein. The ratio also is inapplicable to the facts in this case as we have already held that the direction in Mandals case postponing the operation of the judgment of reservation in promotions for a period of five years is a part of the scheme of judicial review being an innovative device to mete out justice to the Dalits and Tribes giving breathing time to the executive to bring about suitable legislative measures, if they so desired and if no action was taken by amending the law, on expiry of five years, the judgment in Mandals case would become operative. Thereafter reservation in promotion would be unconstitutional which invalidity was remedied. As held earlier, this being one of the tools of judicial craftsmanship adopted by exercising the power under Article 142, which is available only to this Court, the directions given are not violative of rights under Article 14 read with Article 16(1), not ultra vires the power nor void, nor incompatible to or inconsistent with the doctrine of equality enshrined under Article 14 read with Article 16(1) of the Constitution. On the other hand, the power was exercised by this Court under Article 142 read with Article 32 and the direction postponing the operation of the decision for a period of five years is a law of the land under Article 141.63. It is already seen that the rule of reservation in promotions was in vogue in the State of Uttar Pradesh right from 1973 and the promotions came to be made from 1981 onwards to the respondents 2 to 10. The U.P. Act saves the existing policy of reservation in promotions. The judgment in Mandals case saves the promotions already made. In Sabharwals case also a Constitution Bench has upheldthe validity of thepromotions given in excess of the roster; otherwise also those promoted on their own merit were held to be validly promoted. Even excess promotions remained undisturbed and the law became operative only from the date of the judgment. This Court upheld the previous promotions, though in excess of the roster system, as constitutional and valid. Therefore, we hold that the promotions of the respondents are legal and valid and they do not become void or unconstitutional as contended.