Kamal Kant Prasad Sinha, Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 1. these writ petitions as public interest litigation have been filed under article 226 of the constitution, praying for striking down the various constitutional amendment acts, (i) constitution (eight amendment) act, 1959, (ii) constitution (twenty third amendment) act, 1969, (iii) constitution (forty fifth amendment) act, 1980, (iv) constitution (sixty second amendment) act, 1989 and (v) constitution (seventy ninth amendment) act, 1999, as ultra vires of the original article 334 of the constitution of india as well as articles 330, 331, 332 and 333 of the constitution of india as ultra vires of the basic structure of the constitution of india. the parliament has subverted and undermined the democratic republic ideals in sovereign, socialist, secular and democratic republic bharat to the people of india belonging to unreserved categories living in reserved constituencies and these people cannot file nomination from the reserved constituencies, they cannot enjoy liberty of thought and expression freely and according to their own choice, while exercising their fundamental rights. and contend that various amendments upto 45th amendment providing for reservation beyond the period of 10 years had been challenged on the very same ground and both the rajasthan high court as well as orissa high court, on the basis of the supreme court judgments, held that those amendments are not ultra vires to the constitution and as such, the conclusion and finding arrived at by the above high courts on the basis of the ratio decided by the supreme court would apply to these cases also and therefore, these writ petitions are liable to be dismissed. it cannot be disputed that the fight of the unprivileged, down-trodden, poor, historically centuries old oppressed, repressed and suppressed harijans and girgans is not yet over. this opportunity would have never been given to them in the absence of reservation, if they are left to the mercy of the majority electing them on general seats and they will be looked and condemned as class ii citizens even in space-age, as they lack effluency, resources, status etc. 23. according to the learned senior counsel for the petitioners, use of the words in the original article 334 that 'shall cease to have effect' clearly indicated the intention of providing such provision, which is not to be modified or altered or extended and therefore, cessation was mentioned in the article from expiry of ten years limit. the need for such reservation and special representation was well-realized and that justified incorporation of the article in the constitution in 1950. it is quite possible that a ten year period was considered sufficient in 1949 when the constituent assembly was debating the matter.m. karpaga vinayagam, c.j.1. these writ petitions as public interest litigation have been filed under article 226 of the constitution, praying for striking down the various constitutional amendment acts, (i) constitution (eight amendment) act, 1959, (ii) constitution (twenty third amendment) act, 1969, (iii) constitution (forty fifth amendment) act, 1980, (iv) constitution (sixty second amendment) act, 1989 and (v) constitution (seventy ninth amendment) act, 1999, as ultra vires of the original article 334 of the constitution of india as well as articles 330, 331, 332 and 333 of the constitution of india as ultra vires of the basic structure of the constitution of india.2. the main ground on the basis of which prayer has been made is as follows:(a) these constitutional amendments are framing reservations for the last 60 years, whereby promoting fissiparous tendencies among the citizens of india. the continuation of reservation in the matter of representation of the scheduled castes and scheduled tribes has deprived the citizens of unreserved categories from offering themselves as candidates in the election of parliament and state legislatures and other representative bodies in the reserved constituencies for the last 60 years and therefore, they are deprived from exercising their democratic and fundamental rights.(b) the impugned amendments are without authority of law. further the impugned amendments are in vacuum. through these amendments, the parliament is misleading the people of india for the last 60 years from the commencement of the constitution and in the grab of upliftment of scheduled caste and scheduled tribe, alienating the basic human inalienable rights from these people of unreserved categories. the parliament has utterly discarded the basic human rights of the people belonging to unreserved categories living in reserved constituencies in the territory of india. the parliament has subverted and undermined the democratic republic ideals in sovereign, socialist, secular and democratic republic bharat to the people of india belonging to unreserved categories living in reserved constituencies and these people cannot file nomination from the reserved constituencies, they cannot enjoy liberty of thought and expression freely and according to their own choice, while exercising their fundamental rights. their fundamental rights for the last 60 years have been restricted as these people cannot take part in the governance of the country from the reserved constituencies.(c) the other articles providing for reservation of seats in the case of scheduled castes and scheduled tribes in the municipal elections, state legislatures and parliament be declared as ultra vires of the basic structure of the constitution, being opposed to the democratic system of the government, to the feeling, of fraternity, to a sense of unity and integrity of the nation and in violation of the command of the founding fathers enshrined in the original article 334 of the constitution. the command of the founding fathers, while introducing article 334, is that the provision of reservation in the matter of representation should be only for 10 years and thereafter this provision shall cease to have effect after 10 years from the commencement of the constitution. the further extension after 10 years is utter violation of the command of the founding fathers enshrined in the original article 334 of the constitution of india.3. on the above points, elaborate arguments have been advanced by the learned senior counsel for the petitioners. he cited (2007) 2 scc 9,i.r. coelho (dead) by lrs v. state of t.n. and : air1973sc1461 , keshavanand bharti and ors. v. state of kerala. learned counsel representing the state, while refuting the arguments advanced by the learned senior counsel for the petitioners, would cite : air1973ori136 , basudev khadanga v. union of india and ors. and , vichitra banwarilal meena v. union of india and ors. and contend that various amendments upto 45th amendment providing for reservation beyond the period of 10 years had been challenged on the very same ground and both the rajasthan high court as well as orissa high court, on the basis of the supreme court judgments, held that those amendments are not ultra vires to the constitution and as such, the conclusion and finding arrived at by the above high courts on the basis of the ratio decided by the supreme court would apply to these cases also and therefore, these writ petitions are liable to be dismissed.4. we have carefully considered the respective submissions of the learned senior counsel for the petitioners and the learned counsel representing the state.5. according to the learned senior counsel appearing for the petitioners, in the original article 334 of the constitution of india, the founding fathers of the constitution had conclusively ruled that reservation of seats for scheduled castes and scheduled tribes in the house of the people and legislative assemblies of the states shall be only for 10 years and it shall cease to have effect after 10 years from the date of commencement of the constitution and as such, the extension of the period is ultra vires to the original article 334 of the constitution of india.6. while dealing with this point, it is necessary to quote the original article 334 of the constitution, which was in original form in 1950 and as follows:reservation of seats and special representation to cease.-notwithstanding anything in the foregoing provisions of this part, the provisions of this constitution relating to(a) the reservation of seats for scheduled castes and scheduled tribes in the house of the people and in the legislative assemblies of the states; and(b) the representation of the anglo-indian community in the house of the people and in the legislative assemblies of the states by nomination,shall cease to have effect on the expiration of a period of ten years from the commencement of this constitution.this article has undergone five amendments, the last being 79th amende ment, i.e. every time there has been 10 years extension. now it has become 60 years from the inception of the original 10 years, after being extended to 20 years by 8th amendment, 1959, 30 years by 23rd amendment, 40 years by 45th amendment, 50 years by 62nd amendment and lastly 60 years in 79th amendment. after 79th amendment, the following is the extract of the article 334:reservation of seats and special representation to cease after sixty years. notwithstanding anything in the foregoing provisions of this part, the provisions of this constitution relating to-(a) the reservation of seats for the scheduled castes and scheduled tribes in the house of the people and in the legislative assemblies of the state; and(b) the representation of the anglo-indian community in the house of the people and in the legislative assemblies of the states by nomination,shall cease to have effect on the expiration of a period of sixty years from the commencement of this constitution.7. the bedrock of the submission of the learned senior counsel for the petitioners is that there is no basis to claim that without reservation, scheduled caste and scheduled tribe people would not be sufficiently represented in legislatures after expiration of the initial period of 10 years and in any case, after 50 years. it is also argued that various amendments to article 334 of the constitution by extending the period beyond 10 years has resulted in destruction of essential features of the basic structure of the indian constitution as it affects the fundamental rights of the people of the unreserved categories who are not able to exercise their voting power by their free expression and are unable to participate in the governance of the country in the reserved constituencies.8. the plenary power of the parliament to amend the constitution in accordance with law is by article 368 of the constitution. let us now reproduce article 368, which is as under:368. power of parliament to amend the constitution and procedure therefor.-(1) notwithstanding anything in this constitution, parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this constitution in accord ance with the procedure laid down in this article.(2) an amendment of this constitution may be initiated only by the introduction of a bill for the purpose in either house of parliament, and when the bill is passed in each house by a majority of the total membership of that house and by a majority of not less than two-thirds of the members of that house present and voting, it shall be presented to the president who shall give his assent to the bill and thereupon the constitution shall stand amended in accordance with the terms of the bill:provided that if such amendment seeks to make any change in-(a) article 54, article 55, article 73, article 162 or article 241, or(b) chapter iv of part v, chapter v of part vi, or chapter i of part xi or(c) any of the lists in the seventh schedule, or(d) the representation of states in parliament, or(e) the provisions of this article,the amendment shall also require to be ratified by the legislature of not less than one-half of the states by resolution to that effect passed by those legislatures before the bill making provision for such amendment is presented to the president for assent.(3) ... (4) ... (5) ... 9. in this case, learned senior counsel for the petitioners has come with the basic submission that the fundamental rights of the people of unreserved categories to equality is infringed and, therefore, the amendments have to be held invalid. in this context, it should be remembered that even fundamental rights can be infringed or taken away and on that reason, amendments cannot be held to be ultra vires, as per decision rendered in : air1973sc1461 , his holiness bharati stripadagalvaru and ors. v. state of kerala and anr. however, if the amendment affects the essential feature of the basic structure of the constitution, then that amendment can be challenged.in this case, it has been argued that both the fundamental right and essential feature of the basic structure of the constitution are infringed and violated. it cannot be forgotten that the main object for extension of the period through these amendments is to assure equality of status and opportunity to the scheduled castes and schedule tribes and if article 334 is not amended by making extension, they would be very much in peril. according to the learned counsel representing the state, the reasons for providing reservation for further 10 years are still existing and so it requires extension and but for the successive amendments introduced under article 334 and the wise articulation and inclusion of articles 330 to 334, the schedule castes and scheduled tribes would have virtually remained untouchables to the mighty mansions or halls of the lok sabha and state assemblies.10. even after the expiry of the several decades of independence, the dawn of freedom is yet to bestow a willing simile on many hamlets and slums of the scheduled castes and scheduled tribes. liberty, equality and fraternity, so richly enshrined in the constitution of india have still to acquire any meaningful proposition for most of them.as pointed out by the learned counsel for the state, untouchability has been abolished by article 17 of the constitution. a law, such as protection of the civil rights act, with more stringent provisions to eradicate untouchability, had to be enacted in the thirtieth year of our freedom by amending the untouchability offences act, 1955. it bears ample testimony of the fact that we continue with our sin of denying basic human rights to quite a sizeable section of our people. still there are many areas in the country where the scheduled casts are denied even common sources of drinking water and at places, they dare not to take out funeral processions through the same route on which others do. it shows that a moral and unhealthy social disequilibrium continues despite legal provisions and state efforts to the contrary. of course, so much has been done for these communities all these years through legislation. but only a little has been achieved, cannot be easily disclaimed. as indicated above, untouchability has been abolished only through law. but can we say that vicious practice has altogether disappeared from our society?11. bondage and emancipation have been co-existing in this country even after independence. the society and the government should view the atrocities against weaker sections clamouring for social justice, not as mere violations of law but as deep-rooted sins against the society by the predominant sections which law and courts of law may not encounter to the fullest satisfaction in the given context of our social development. inhuman conditions under which the scavengers flayers and tanners work remain to be tackled. the degrading practice of manual removal of night soil by scavengers who belong to a particular community of scheduled castes still continues in many parts of the country.12. though the main constitutional safeguards for upliftment of the weaker sections and the schedule castes and scheduled tribes, who earlier were treated worse than dogs and donkeys as chandals being not only untouchable but unseeable, have been incorporated in various articles of the constitution, the situation has not fully changed. under those circumstances, article 334 is a repository fountain and bedrock of power providing legislative weightage for enforcing all the above articles. this provides upliftment of the weaker sections by making them law-makers and first grade citizens of india by becoming masters of their own destiny.13. unless their voice is properly heard in legislatures, all other articles would remain crocodile tears for them only as there would be neither enforceability, nor accountability. in short, article 334 is the real watch-dog of all other above articles and ensures equality. it cannot be disputed that the fight of the unprivileged, down-trodden, poor, historically centuries old oppressed, repressed and suppressed harijans and girgans is not yet over. this is the only country where millions of citizens, namely, scheduled castes and scheduled tribes, are yet treated as class ii citizens, except for the purposes of election, education and services. even after several decades, the slur of stigma and blackspot of untouchability has not yet been eradicated.14. though this court under article 226 normally cannot go into the question of reasonableness and justification of all the amendment acts including 79th amendment act, even on the assumption of the jurisdiction, we are of the view that the extension for the period of 60 years was wholly justified, reasonable and in consonance with the necessity to uplift the scheduled castes and scheduled tribes and to provide them equal opportunity of participating in legislating their own destiny. this opportunity would have never been given to them in the absence of reservation, if they are left to the mercy of the majority electing them on general seats and they will be looked and condemned as class ii citizens even in space-age, as they lack effluency, resources, status etc.15. equal justice has been assured under article 39a. article 38 gives paramount importance for protecting order in which justice, economic and political was informed of constitution of national life. the preamble of the constitution proclaims justice and equality of opportunity to all and fraternity assuring dignity of the individual. the preamble reads as follows :we, the people of india, having solemnly resolved to constitute india into a sovereign, socialist, secular, democratic republic and to secure to all its citizens :justice, social economic and political, liberty of thought, expression, belief, faith and worship equality of status and of opportunity;fraternity assuring the dignity of the individual and the unity and integrity of the nation.16. various provisions were made in the constitution for the upliftment of the weaker section, particularly for the scheduled castes and scheduled tribes. the same can be achieved only when they are protected and provided equal status, opportunities and proportions in the legislatures also where they can legislate and ensure enforcement and implementation of the above laws. as indicated above, article 17 prohibits untouchability, but unless proper laws are made, it would not be possible to implement this article in letter and spirit. it was with this end in view the act was made to punish those who practise untouchability. it would thus be seen that it is only when the weaker section itself, get their representatives in parliament and legislature they can make special effort to enforce the various provisions of the constitution.17. originally, the makers of our constitution had provided for reservations in parliament and state legislatures for the scheduled castes and scheduled tribes for a period of ten years from 26th january, 1950.at that time the founding fathers were under impression that it would be possible to bring up the scheduled castes and scheduled tribes educationally, economically and socially during the said period. when this has not happened within the said period, the government has been obliged to extend this period of ten years to twenty years, then thirty years to sixty years upto the last amendment. it is high time that all possible efforts are made to bring up these people to the general levels in our society in a short period, so that government is not obliged again to do the unpleasant duty of extending the reservation for another decade. if all of them make it a point to help as many scheduled caste and scheduled tribe persons as possible to return to the parliament and state legislatures against general seats from their parties. the time will automatically come when the need for separate reservation for them may disappear.it is contended that it is a fundamental right of every citizen to contest or fight for each and every election. this is not correct. the supreme court in the case of n.p. ponnuswami v. the returning officer, namakkal constituency, namakkal, salem and ors. reported in : [1952]1scr218 , has categorically held as follows:18. the points which emerge from the decision may be stated as follows.- (1) the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.(2) strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with law which creates it.18. it is also held by the supreme court in the case of jamuna prasad mukheriya v. lachhi ram reported in : [1955]1scr608 , that the right to contest an election is not a common law right but is a special right, created by statute, which can be exercised on the conditions, laid down by the statute. similarly in the case of jyoti basu v. debi ghosal, reported in : [1982]3scr318 , the supreme court held that a right to elect, fundamental though it is to the democracy but is not fundamental right, nor a common law right.19. by extending the period from thirty to forty, forty to fifty and fifty to sixty years parliament and legislatures have only strengthened the essential feature of the basic structure of the constitution in respect of democracy giving equal opportunity to all citizens in the matter of adult franchise and proper representation in the legislature.20. the constitution of india enjoins upon the government to give special attention to the uplift of the scheduled castes and scheduled tribes. various steps have been taken to promote the educational and economic interests of the backward classes, scheduled castes and scheduled tribes, but much more remains to be done. these classes are still the victims of social injustice. to some extent, they still remain segregated from so called higher communities. since independence, the maximum benefit of these constitutional protections have been given to a determined group rather concentrated class within schedule castes.21. a scaenger still remains a scavenger though they are termed under the category of scheduled castes. they are being discriminated despite the constitutional safeguards because they do not have their leaders to represent. therefore, state should undertake the responsibility to look into woeful tales of atrocities of the down-trodden masses of india, as to enable them to remove their inherent inferiority complex, humiliation and several other disabilities. in short, it is to be stated that it can be safely said that something has been achieved in this regard but much remains to be done.22. these amendments no where infringe any essential features of the basic structure of the constitution. contrary to it, retention of the safeguards and protection of special reservations in parliament and state legislatures for the schedule castes and scheduled tribes only strengthens essential features of a real democracy with equal opportunity and equal status and justice, political, social and economic to them. these amendments, instead of infringing fundamental right of equality of the schedule castes and scheduled tribes, ensures them equality and upgrades them as class i citizens and bring them in the main stream of the country.23. according to the learned senior counsel for the petitioners, use of the words in the original article 334 that 'shall cease to have effect' clearly indicated the intention of providing such provision, which is not to be modified or altered or extended and therefore, cessation was mentioned in the article from expiry of ten years limit.24. we are unable to accept this contention. it is true that debates of the constituent assembly indicates the period of 10 years. dr. ambedkar himself has stated the followings :with regard to the other arguments which have been used by my friends, mr. muniswami pillai and mr. manmohan das, i am sorry, it is not possible to accept that amendment. their proposal is that while they are prepared to leave the clause as it is they propose to vest the parliament with the power to alter this clause by further extension of the period of ten years. now first of all we have, as i said, introduced this matter in the constitution itself and i do not think that we should permit any change to be made in this except by the amendment of the constitution itself. the statement of dr. ambedkar made on the floors of the constituent assembly even if it supports mr. dora's contention cannot be adopted for the purpose of finding out powers of parliament to amend article 334 of the constitution because what was stated at the time when the constitution was being shaped but was not actually incorporated into the constitution cannot be taken into consideration while considering the power of parliament. the need for such reservation and special representation was well-realized and that justified incorporation of the article in the constitution in 1950. it is quite possible that a ten year period was considered sufficient in 1949 when the constituent assembly was debating the matter. in actual experience as time passed, it was realized that the purpose had not been served. that justified the other amendments. the parliament found that the need for reservation and special representation had not gone but what was realized in subsequent years that it was a necessity that period to be extended.25. as indicated above, it is a settled law that right of franchise or the right to a public office by the democratic process is not fundamental right. if by amendment of article 334 of the constitution of india, either the petitioners' right or the right of unreserved categories to contest to membership of legislative assembly or parliament is taken away, it does not amount to interference with any fundamental right of the persons concerned. as a matter of fact, article 15(4) provides that 'nothing in this article or in clause (2) of article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the schedule castes and scheduled tribes. this sub-article was introduced by the first amendment to the constitution after the supreme court in the state of madras v. sm. champakam dorairajan : [1951]2scr525 , gave its verdict.'26. under those circumstances, we are of the considered opinion that the amendments including the last amendment 79th amendment extending the term for reservation in parliament and in the state legislatures for the schedule castes and scheduled tribes from ten to twenty, twenty to thirty, thirty to forty upto sixty are intra vires, constitutional and valid. we are of the further view that these amendments no where infringe any essential features of the basic structure of the constitution and on the other hand, retention of the safeguards and protection of special reservations to these weaker sections would strengthen the essential features of real democracy with equal opportunity and equal status, which is in consonance with the preamble of the constitution. hence, these pils are accordingly dismissed. however, there is no order as to costs.d.g.r. patnaik, j.27. i agree.