It is quite significant that the Apex Court as recently as on September 6, 2021 in an extremely learned, laudable, landmark and latest judgment titled The State of Madhya Pradesh & Ors vs Pujari Utthan Avam Kalyan Samiti & Anr in Civil Appeal No. 4850 of 2021 (arising out of SLP (Civil) No. 33675 of 2017) has observed clearly, cogently and convincingly that the presiding deity of the temple is the owner of the land attached to the temple and Pujari is only to perform puja and to maintain the properties of the deity. This was so observed while upholding the circulars issued by the Madhya Pradesh Government to delete the names of Pujari from revenue record pertaining to temple properties. It must be mentioned here that these circulars issued by the Government under MP Land Revenue Code, 1959, were earlier quashed by the Madhya Pradesh High Court. As we clearly see, the Madhya Pradesh State Government thus stands fully vindicated on the stand that it took on this vexed issue by none other than the Apex Court itself!
To start with, this brief, brilliant, balanced and bold judgment authored by Justice Hemant Gupta for himself and Justice AS Bopanna sets the ball rolling by first and foremost observing in para 1 that, “The order dated 14.06.2016 passed in an intra-court appeal by the Division Bench of the Madhya Pradesh High Court is the subject matter of challenge herein at the instance of State of Madhya Pradesh. The learned Single Bench allowed the writ petition filed by Association of Priests registered under the M.P. Society Registrikaran Adhiniyam 1973. Such society has 251 members in the Districts of Dhar, Indore, Ratlam, Shajapur, Ujjain, Jhabua etc.”
To put things in perspective, the Bench then envisages in para 2 that, “The challenge in the writ petition was to quash the circulars dated 21.03.1994 and 07.06.2008 whereby the names of Pujari were ordered to be deleted from the revenue record. The said writ petition was allowed on 20.11.2013 relying upon the judgments of the High Court in Ghanshyamdas v. State of M.P [1995 Revenue Nirnaya (RN) 235 (Hereinafter referred to as the ‘Ghanshyamdas I)] and Kashi Bhatti through LRs v. State of M.P (2009 R.N. 179) . The learned Single Bench held that the circulars dated 12.11.1992 and 21.03.1994 were already quashed by the High Court in the year 1995 and 1999 respectively and therefore there was no justification on the part of the State Government to issue circular dated 07.06.2008 directing the Revenue Commissioner to follow the circular dated 21.03.1994. Learned Single Bench held as under:
“The name of Collector is being mentioned as manager. It is true that by mentioning the name of Collector as manager, properties owned by the Temple were saved but at the same time the properties could not be managed properly as it is not expected from the Collector to manage the properties of the Temple. To protect the interest of Pujari’s who are entitled to get the benefits of the scheme which are being introduced by the Government for the benefit of the agriculturist. To protect the interest of making the law in that regard by suitable legislation as the problem is lying in the Court in number of cases for last 30 years. In result the impugned order dated 07/06/08 (Annexure P/21) is quashed.””
As it turned out, the Bench then puts forth in para 3 that, “In an intra-court appeal against the aforesaid findings, the High Court referred to a judgment of Division Bench in State of M.P. v. Ghanshyamdas [1999 R.N. 25 (Hereinafter referred to as the ‘Ghanshyamdas II)] , an order passed against the order in writ petition reported as Ghanshyamdas I. The Court inter alia held that Pujaris had no right to alienate the properties of the temple. They have rights only with respect to either cultivate the land or get it cultivated through servants. The High Court further held that if the temple was managed by the Pujari, then keeping in view the law laid down from time to time, his name was required to be mentioned as Pujari along with the name of the deity. The Court held as under:
“The learned Writ Court relying on the decision of the cases of State of M.P. & others v. Ghanshyamdas & Others v. (supra), Kanchaniya v. Sheoram (supra) and Pancham Singh v. Ramkishandas (supra) has held that right of Pujaris continued from their forefather, cannot be taken away by executive instructions. There was no justification on the part of the State Government to advice to Revenue Commissioner to follow circular dated 21.03.1994, when the same was quashed. It is not in dispute that as per Clause 5 of the Land Records Manual in Column No.3 of Khasra Entries deals with the name of occupier; Column No.4 deals with name of bhumiswami or lessees or his representatives while Column No.12 deals with the remarks. Undisputedly, the land, which is owned by the temple or deity or the land owned by temple or by the trust, name of the deity/temple or trust, as the case may be, is required to be mentioned in Column No.3. If the temple is managed by the Pujari, then keeping in view the law laid down by this Court from time to time, his name is required to be mentioned as Pujari along with the name of the deity.””
Be it noted, the Bench then enunciates in para 7 that, “We have heard the learned counsel for the parties and find that there is lack of clarity in the High Court in regard to the legal jurisprudence. Different judgments have been referred to in respect of rights of the priests as to whether they can be treated as Bhumiswami or if they only hold the temple land for the purpose of management of the property of the temple, which actually vests with the deity.”
Furthermore, the Bench then observes in para 16 that, “A circular dated 21.03.1994 was issued wherein it was directed that the name of the Pujari should not be recorded in any of the column of the Panchnama (revenue record). The Collector was directed to maintain a separate register for maintaining the records of the priest. The High Court in Shri Krishna held that all those persons who were granted land or were recognised as Inamdar (in the erstwhile Indore State) for religious services rendered by them as Pujari have been recognised as Bhumiswami under the Code. The Pujaris were holding land for rendering religious services; therefore, a right had been created in their favour which could not be withdrawn by an executive instruction. The Court held as under:
“5A. From the discussion above, it is evident that all those persons who were granted land or were recognised as Inamdar (in the erstwhile Indore State) for the religious services rendered by them as Pujari of the Temple have been recognised to be a Bhumiswami under the Code and their names appeared as such in Revenue Records, since they were holding land for rendering religious services as Pujari of the Temple and the land was granted specifically for that purpose, the name of the Collector as Manager along with these pujaris was directed to be shown. This long possession and recording of their names in revenue records as Bhoomiswami or Managers has definitely created a right in their favour. It is an established principle of law that if any right has been vested in a person by certain statutory provisions, the same cannot be withdrawn by an executive instruction. Even if a person is required to be deprived of his vested right in a property, a legal procedure for the same will have to be adopted. If the State Government of MP feels that the recording of name of such persons as Bhoomiswami is non-est, then too it will have to give a notice to the person and an opportunity of hearing and after making due enquiry followed by a reasoned order (if it is found as such), the order for modification, corrections and change in the record can be done.””
What’s more, the Bench then points out in para 17 that, “On the other hand, there are some judgments taking different view within the High Court including the one reported as Sadashiv Giri & Ors. v. Commissioner, Ujjain & Ors. 1985 RN 317 wherein an argument was raised that the temple is in possession of land. However, the Court held that how could the temple have such possession, therefore, it was the Pujari who had been conferred the right to upkeep and perform puja by the then Jagirdars. The Pujaris were the Inamdars of the land in question and thus became Bhumiswami when the Code came into force on 02.10.1959. The said judgment is clearly erroneous as the presiding deity of the temple is the owner of the land attached to the temple. The Pujari is only to perform puja and to maintain the properties of the deity. In fact, the Constitution Bench in a judgment reported as M. Siddiq (Dead) Through Legal Representatives v. Mahant Suresh Das and Others (2020) 1 SCC 1 held as under:
“511. …….. A pujari is merely a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted ceremonies over a period of time. All the evidence relied upon to support the claim of late Baba Abhiram Das is restricted to his having performed puja at the disputed premises and does not confer any shebaiti rights.””
As we see, the Bench then brings out in para 18 that, “Hence, the Division Bench judgment in Shri Krishna has conferred the status of Bhumiswami on the priest but without bringing the judgment in Pancham Singh before the notice of the Court. Such Judgment has been rendered in ignorance of the binding Division Bench judgment which is supported by the law laid by Supreme Court in Mst. Kanchaniya. The judgment in Sadashiv Giri is in respect of action of auction without the authority of law. The judgment in Pancham Singh was cited but question was not examined as the petitioners were said to trespassers by the State. The High Court found that the petitioners being in possession can be deprived of possession only in accordance with law.”
Quite pertinently, the Bench then points out in para 19 that, “In the present case, the question which is required to be decided is whether a priest can be treated as Bhumiswami under the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) and as a consequence under the Code. The reliance of the respondent is on Gwalior Act. In some of the judgments mentioned above, the provisions of Gwalior Act have been described as ‘Regulations’ and in some as ‘Sections’. Since it appears to be issued by the then ruler of Gwalior, the same has to be treated as a statute, having a force of law applicable in the erstwhile State of Gwalior.”
While continuing in the same vein, the Bench then quite significantly postulates in para 20 that, “This question has already been considered by the courts in Pancham Singh, which has further been affirmed by Kanchaniya. The Law is clear on the distinction that the Pujari is not a Kashtkar Mourushi, i.e., tenant in cultivation or a government lessee or an ordinary tenant of the maufi lands but holds such land on behalf of the Aukaf Department for the purpose of management. The Pujari is only a grantee to manage the property of the deity and such grant can be reassumed if the Pujari fails to do the task assigned to him, i.e., to offer prayers and manage the land. He cannot be thus treated as a Bhumiswami. The Kanchaniya further clarifies that the Pujari does not have any right in the land and his status is only that of a manager. Rights of pujari do not stand on the same footing as that of Kashtkar Mourushi in the ordinary sense who are entitled to all rights including the right to sell or mortgage.”
It cannot be glossed over that the Bench then mentions in para 21 that, “In a judgment reported as Ramchand (Dead) by Legal Representatives v. Thakur Janki Ballabhji Maharaj and Another AIR 1970 SC 532, it was held that if the Pujari claims proprietary rights over the property of the temple, it is an act of mismanagement and he is not fit to remain in possession or to continue as a Pujari.”
It also cannot be lost on us that the Bench then puts across in para 22 that, “The contrary view expressed by the High Court in Ghanshyamdas I, Sadashiv Giri and Shri Krishna does not lay down good law in view of binding precedent of the Division Bench of the High Court in Pancham Singh as also of this Court in Kanchaniya. All these judgments presenting a contrasting view had not noticed the said binding precedents dealing with the rights of priest under the Gwalior Act.”
As a corollary, the Bench then observes in para 23 that, “Taking into consideration the past precedents, and the fact that under the Gwalior Act, Pujari had been given right to manage the property of the temple, it is clear that that does not elevate him to the status of Kashtkar Mourushi (tenant in cultivation).”
Quite forthrightly, the Bench then points out in para 24 that, “The ancillary question which arises is whether the priest is Inamdar or Maufidar within the meaning of Section 158 (1)(b) of the Code. Such provision contemplates that the rights of every person in respect of land held by him in the Madhya Bharat region i.e. area of erstwhile Gwalior and Holkar as a Pakka tenant or as a Muafidar, Inamdar or Concessional holder shall be protected as Bhumiswami. The priest does not fall in any of the clauses as mentioned in Section 158(1)(b) of the Code. The maufi was granted to the property of temples from payment of land revenue. Such maufi was not granted to a manager. Even Inam granted by the Jagirdar or the ruler to a priest is only to manage the property of the temple and not confer ownership right on the priest. Therefore, in view of the judgment in Pancham Singh and also of this Court in Kanchaniya, the priest cannot be treated to be either a Muafidar or Inamdar in terms of Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) or in terms of Gwalior Act. Since the priest cannot be treated to be Bhumiswami, they have no right which could be protected under any of the provisions of the Code.”
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By the way, the Bench then makes it clear in para 25 that, “Another question which arises is whether the State Government by way of executive instructions can order the deletion of name of Pujari from the revenue record and/or to insert the name of a Collector as manager of the temple. In Ghanshyamdas II, it was held that even if temple was being managed by the Pujari, his name is required to be mentioned as Pujari along with name of deity. We do not find any man date in any of the judgments to hold that the name of Pujari or manager is required to be mentioned in the revenue record.”
Most significantly, the Bench then makes it crystal clear in para 27 that, “In the ownership column, the name of the deity alone is required to be mentioned, as the deity being a juristic person is the owner of the land. The occupation of the land is also by the deity which is carried out by the servant or the managers on behalf of the deity. Therefore, the name of the manager or that of the priest is not required to be mentioned in the column of occupier as well. In Ghanshyamdas II, it was held that if the name of the Pujari is recorded in the column No. 12 i.e. column of remarks, it will not affect the rights of the Pujari so long as he is performing his functions properly and cultivating the land or getting the land cultivated through servants. Therefore, the name of the Pujari cannot be mandated to be recorded either in the column of ownership or occupancy but may be recorded in the remark’s column.”
While clearly vindicating the stand of the Madhya Pradesh State Government, the Bench then puts forth quite vividly in para 28 that, “No rule has been brought to the notice that the name of the manager has to be recorded in the land records. In the absence of any prohibition either in the statute or in the rules, the executive instruction can be issued to supplement the statute and the rules framed thereunder. Such instructions do not contravene any of the provisions of the Code or the rules. Therefore, they cannot be said to be illegal or in excess of the authority vested in the State Government.”
Briefly stated, for the sake of clarity, the Bench then makes it clear in para 29 that, “However, we find that the name of the Collector as manager cannot be recorded in respect of property vested in the deity as the Collector cannot be a manager of all temples unless it is a temple vested with the State.”
Adding more to it, the Bench then hastens to add in para 30 that, “Another argument was raised that such circulars of the State Government shall be applicable to the public temples and not to the private temples. A bare reading of the circulars does not make out such distinction. However, a temple in a house or which is not open to the public cannot be treated to be a public temple. However, it will be a question in each case whether it is a public temple or a private temple which can be decided in the appropriate proceedings. For the purpose of the present appeal, we find that the circular is applicable to all temples unless a particular temple is able to satisfy the competent forum of it being a private temple.”
Finally, what came as a body blow to the Madhya Pradesh High Court is that the Bench then holds in para 31 that, “In view of the above observations and discussions, the order of the High Court cannot be sustained. The Circulars dated 21.3.1994 and 7.6.2008 cannot be said to be illegal in any manner. The Writ petition is thus dismissed and the appeal is allowed.”
Quite clearly, the Apex Court Bench comprising of Justice Hemant Gupta and Justice AS Bopanna have laid down elaborately as to why the Madhya Pradesh High Court order cannot be sustained and the circulars issued by the Madhya Pradesh State Government cannot be said to be illegal in any manner. We have already discussed hereinabove in detail. The Apex Court has also made it clear that it is the presiding deity that is the owner of land attached to temple and not pujari whose job is only to perform the puja and to maintain the properties of the deity.
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Analysing reservation and the ceiling limit of 50%
Recently Supreme Court struck down the Government of Maharashtra order in which it was decided to give reservation to Marathas. This particular decision of Maharashtra government was violating the well-established ceiling limit of 50%. After this parliament passed Constitution (One Hundred and Twenty-Seventh Amendment) Bill, 2021. While debate was going on the bill, a statement was also made by one parliamentarian, Asaduddin Owaisi where he urge government to lift the cap of 50% on reservation quota. So some fair and reasonable question here need to be addressed. Can the State in the zeal of promoting backward class ignore all together the other? Doesn’t it violates the basic right to equality of rest of the community not the part of reservation?
The concept of ‘Reservation’ can be understood in the backdrop of the historical injustice that happened in past. The Indian society has unique social structure. This society is divided mainly in four class in the form of caste. Few caste or class did not get well resource due to this caste system so they could not got progress with time. They faced lots of exploitation and injustice. This injustice led to inequality in the society. Therefore to bring socio economic equality in our society different constitutional provision is there. The notion of reservation is bought to uplift the disadvantaged and downtrodden people. In order to secure socio-economic justice to the vulnerable class the provision of reservation is made in our constitution. After the advent of constitution the government of India started its initiative to provide reservation to backward classes in order to fulfil theircommitment.
Reservation is an affirmative action taken by state which implies enforcing equal opportunity. Affirmative action of state means that the policy and programme of state by which state machinery tries to redress the past injustice through the active measures to ensure employment and education for the disadvantaged class. United States favours members of disadvantaged group who have suffered within a culture/system in the name of positive action. Employment equity in Canada is positive action by state. In the same way the concept of reservation is affirmative action of state in India to bring equality in unequal. So we can conceive affirmative action is something to protect people from the present effects stemming from past discrimination. Although the positive action policies are controversial in nature but it pervades in one and other form. Some of the affirmative action are like gender quota, racial, religious and caste quota. The fundamental reason to take affirmative action in Europe was rampant slavery and segregation. In India the caste system led to backwardness, social exclusion, segregation, discrimination and exploitation of certain communities which necessitated affirmative action in India. The caste based reservation is unique kind of affirmative action that is taken by state to uplift the backward and downtrodden section of society. In this affirmative action, state provide reservation to backward section or class by reserving jobs and providing some special facilities for their uplifting.
Constitution of India gives the commitment and mandate for the protective discrimination. Constitution of India grantees the right to equality. Right to equality means that one shall be discriminated on the basis of caste, creed, class, sex, place of birth, race and religion. Everyone shall be equal in the eye of law. The preamble of constitution of India guarantees the equality in terms of status and opportunity. The part III of the Indian constitution deals with fundamental right. This part contains Article 14, 15, 16, 17 and 18 which assures the right to equality under constitution of India. The specific application of article 14 is laid down in succeeding articles 15, 16, 17 and 18. Part IV of the constitution deals with Directive Principal of State Policy which is provides the guiding principle to the state. Under this part Article 46 is there which says that the state shall take special care of educational and economic interest of weaker section.
Article 14 of constitution of India states that ‘The state shall not deny any person equality before the law or the equal protection of the laws within the territory of India’. Thus the article 14 uses two expression ‘equality before the law’ which is of English origin and the expression ‘equal protection of law’ has come from American constitution. Equality before law is a negative concept. It shall ensure that there is no special privilege in favour of individual. It implies that everyone shall be equal subject of the ordinary law of land and no person is above the law. Whereas, equal protection of law is a positive concept. It does not mean that identical law will apply to all people irrespective of their circumstances. It means equal treatment of people in equal circumstances. It implies that application of law without discrimination and also application of laws alike to all person similarly situated.
The article 15 is more specific then article 14 under constitution of India. It provides for a particular application of article 14. Clause 15(1) of Article 15 is general prohibition. It prohibits the state from discriminating between people on the ground or the basis of religion, caste, sex, and place of birth or any of them. So law would be invalid if it discriminates on any of these grounds. Whereas clause 15(2) is specific application of 15(1). Clause (3) of Article 15 is one of the exception of general rule laid down in in clauses (1) & (2) of article 15. It empowers the state to make special provision for women and children. According to this clause nothing in article 15 shall prevent the state from making any special provision for women and children. After the judgement of State of Madras Vs Champakam Dorairarajan clause (4) of article 15 was added. It is another exceptions to general rule laid down in clause (1) and clause (2) of article 15. It enable the state to make special provision for socially and educationally backward class of citizen or for the schedule castes and schedule tribes.
After the judgements of TMA Pai Foundation V State Of Karnatka & P.A.Inamdar V State Of Maharashtra in which court held that government can’t make provision for reservation in privately run educational institution, parliament inserted clause (5) of article 15. Parliament by 93rdamendment inserted article 15(5) in constitution of India to nullify all these judgement. According to this clause sate can make special provision for the advancement of any socially or educationally backward classes of citizens or for the SCs & STs in relate to admission in educational institutions whether it is aided or unaided by state. This clause mention one exception to this provision that minorities educational institution under article 30(1) is not included. This 93rdconstitutional amendment was challenged in Supreme Court of India and upheld by the court.
The most recent clause under article 15 was clause (6) which has been added in our constitution through 103rd constitutional amendment act 2019. This clause (6) provides 10 percentreservation to economically weaker section from the upper caste of society for admission to central-government educational institutions and private educational institution except for minority educational institution whether aided or unaided by the state. Parliament also made certain criteria to define economic weaker section on the basis of family income and indicators of economic disadvantage. This amendment crosses the ceiling limit of 50% which was established by Supreme Court of India in Indira Sawhney Judgement.
Article 16 of the constitution gives the principle of equal employment opportunity which applies to access to jobs, conditions of employment, and relationships in the work place and the evaluation in performance. Article 16(1) of the constitution of India guarantees equality of opportunity in matters of employment or appointment to any office under the state for all the citizens. Clause (2) of article 16 says that no citizen shall be ineligible for or discriminated in respect of any employment or office under state only on the ground of religion, race, caste, caste, sex, descent, and place of birth, residence or any of them. So, State shall treat every citizen equally in matter of appointment and public employment. Clauses (1) & (2) of article 16 is general rule of equality of opportunity in matters of employment or appointment to any office under the state and that no citizen shall be ineligible for or discriminated in respect of any employment or office under state only on the ground of religion, race, caste, caste, sex, descent, place of birth, residence or any of them. Both clauses mandate the state that not to discriminate the citizens on mentioned ground only in respect of employment or office under the State. Clause(3) of Article 16 enable the parliament to make any law prescribing residence within the state as mandatory condition for particular class of appointment andemployment for the specified state under schedule 1 and any local or authority. It thus makes exception in appointment and employment and restricts clause (2) of article 16. A non-resident cannot be denied employment in any state.
Article 16(4) of constitution provides reservation to the backward class about whom state has the opinion that they have not proper representation in the service of the state. So two compelling circumstances under which state provides reservation under the clause 4 of article 16 is backwardness and inadequate representation in state services. The Article 340 of the constitution has the provision to establish commission for deciding the backwardness. Clause 4A of article 16 flows from its clause 4. Article 16(4A) of constitution provides reservation to SCs & STs which, in the opinion of state are not adequately represented in the services under the state. This reservation must be consistent with the efficiency in administration. 85th constitutional amendment act amended the Article 16(4A) by the substitution of “in matters of promotion with consequential seniority, to any class” in place of “in matter of promotion to any class”. This was challenged and court upheld its constitutional validity. Clause 4B of Article 16 was inserted by 81st amendment of constitution in 2000. This Constitutional Amendment allowed the State to carry forward unfilled vacancies from previous years to next year and to breach the 50% ceiling set on reservation for SCs, STs and OBC which could not be filled up due to non-availability of eligible candidates. Article 16(5) says that state is competent enough to make reservation for the religious office related to particular religion.
Article 46 of the constitution mandates the state to take special care for SCs, STs and weaker sections. It says that state take care economic and educational care of SCs, STs & economic weaker section and protect them from social injustice and all form of exploitation.
Constitutional string of Reservation can be called to Articles14, 15 and 16. Preamble of constitution of India guarantees the right to equality. This commitment can be seen through the articles 14, 15 & 16. These article provides the provision of reservation by which state takes affirmative action to bring equality.
EVOLUTION OF RESERVATION BY JUDICIAL PRECEDENTS
Supreme Court of India by its precedent shaped the modern reservation system. It started with case of ChampakamDorairajan case where court held reservation invalid. This judgement led to the first constitutional amendment. Then it went to many landmark cases like Balaji, Indira Sawhney, Ashok Thakur, M Nagraj, jarnail singh and many more cases. Here I am going to deal with detail discussion how today’s reservation system evolved through judicial precedent.
In the State of Madras Vs Champakam Dorairajan case, government of Madras by a government order madereservation in seats of State Medical and Engineering Colleges for different communities on the basis of religion, race and caste in certain proportion. This was challenged by respondent on the ground of violation of article 15(1) and 29(2) of the constitution. The government contended this reservation is made to promote social justice for all sections of people as required by Article 46. The Supreme Court of India held that the government order is void since it discriminates student on the basis of religion, race and caste instead of merit. Court held that fundamental rights cannot be override by directive principle of state policy.
To modify this judgement the parliament of India amended the article 15 through the first constitutional amendment and inserted clause (4) in this article.
In the Balaji V State of Mysore case, Government of Mysore order to reserve 68% seats in Medical and Engineering College for different communities under article 15(4). This order declared that every community except Brahmin community is socially and educationally backward. Reservation was made in favour of SCs, STs and Socially and Educationally Backward communities. This socially and educationally community was again divided into backward classes and more backward classes. This order was challenged on the ground it’s unconstitutional. In this case court held that the sub-classification of backward class into ‘backward class’ and ‘more backward’ class was not justified under article 15(4). Court held that backwardness dealt in article 15(4) must be social as well as educational and not either social or educational. Caste cannot be sole criteria to decide whether any class is backward class or not though caste can be relevant factor to decide backwardness. Court held that the order in which reservation of 68% for backward class is made is invalid since article 15(4) is enabling provision not exclusive provision for backward classes. Court pointed out that the special provision of reservation must be less than 50% and the extent of the special provision depends on relevant prevailing circumstances in each case.
In Devadasan V Union of India case constitutional validity of ‘carry forward’ rule was challenged. ‘Carry forward rule’ was a concept framed by government to regulate appointment of persons of backward classes in Government services. According to this rule if in any appointment was made in which there are not sufficient number of candidates belonging to SCs & STs available then that vacancies which remained unfilled would be treated unreserved and filled by new available candidates. Consequently 68% of the vacancies were reserved for SCs & STs. This was challenged in Supreme Court. The Supreme Court of India by majority of 4 to 1 stuck down the ‘carry forward’ rule on ground that it is unconstitutional. Court held that Article 16(4) of the constitution does not enable the state to make provision so as to deny reasonable equality of opportunity in matters of public employments for members of classes other than backward classes. Court pointed out that each year recruitment must be considered by itself. Court held that reservation for backward classes should not create monopoly for particular class or interfere with the legitimate claims of other communities. So the court concluded, reservation for backward class should not cross the ceiling limit of 50 percent and the extent of reservation would be determined by the prevailing circumstances in every particular case.
In State of Kerala V N.M.Thomas case, court made the observation that the application of measures to ensure equality of services for the unrepresented classes after satisfying basic needs of efficiency of administration does not violate the rule of equality under Article 16. Court held that article 16(4) is not the exception of article 16(1) but one of the methods of achieving equality embodied in article 16(1). It means that the State can make reservation to the extent of 80% in appropriate cases.
In A.B.S.K. Sangh (Rly.) V Union of India case, court upheld the validity of ‘carry forward rule’. In this case 17% reservation was made for SCs & STs candidate which was extended for 2 to 3 years. This led to the reservation quota 64.4 %. But the court held that this was not excessive as mathematical precision could not be applied in dealing with human problems. Justice Krishna Iyer pointed out that some extent will not affect the reservation but the substantial extent will void the selection. In this case majority permits the reservation beyond 50% but subject to judicial approval. Finally, court upheld 64.4% reservation on the ground that it is excessive.
In Indiara Sawhney V Union of India case, the government on Mandal commission report order to reserve 27% government jobs for other backward class provided creamy layer among them. This order was challenged on the ground that it violates the basic structure of the constitution. This order was upheld by the 9 judge bench of the Supreme Court by 6:3 majority. Court struck down the order of the government for reserving 10% Government jobs for economically backward classes among higher classes. Court also held that the extent of reservation should not exceed 50 percent. Court considered that in extraordinary situation like when people living in remote or in far flung areas who because of their peculiar conditions need a different treatment this rule can be relaxed. But in that case State must take special caution. The court reaffirmed the rule led down in Balaji and Devadasan and overruled the Thomas and Vasanth Kumar case. Court relied on the speech made by Ambedkar in the Constituent Assembly where Ambedkar said “reservation must be confined to a minority of seats”. Court pointed out that the clause (4) of article 16 talks about adequate representation not about proportionate representation. If the member of SC & ST is selected on the basis of merit in the open competition then he will not be counted as reserve quota. The rule of 50% shall be applicable to reservation proper only not to relaxations or concessions, exemptions provided to backward classes. The court also held that the ‘carry forward rule is valid in which the unfilled vacancies are carry forward to next year is valid provided it should not crosses ceiling of 50%.
In Chebrolu Leela Prasad V state of Andhra Pradesh case constitutional validity of government order in which 100% reservation was made in favour of schedule tribe candidates for the post of teachers in the schools in the schedule area of Andhra Pradesh was challenged. The issue raised in the case was weather the reservation to the extent of 100% is permissible under the constitution. Court held the 100 percent reservation to schedule tribe is invalid, unreasonable, unfair and arbitrary. Court said giving 100% reservation to schedule tribe has disadvantaged the opportunity for other community. The court pointed out the judgement of Indira Sawhney case and said that the main idea behind the reservation is adequate representation not proportionate reservation. So the notification issued by Andhra Pradesh government is arbitrary and unreasonable and it violates the Articles 14, 15 & 16 of the constitution.
CRITICAL ANALYSIS OF THE CEILING LIMIT OF 50% IN RESERVATION IN THE BACKDROP OF SUPREME COURT DECISION
The Supreme Court of India by its judicial pronouncement has made it clear that the state can make reservation as long as it does not crosses the limit of 50%. After the judgement of Champakam Dorairajan case parliament inserted the Article 15(4) to modify the judgement. In the Balaji case state made reservation under the clause (4) of article 15 exceeding the limit of 50%. Court held the reservation invalid and said that state cannot ignore altogether the rest of the society on the zeal of promoting the backward class. Finally the ceiling limit of 50% with certain exception was upheld in Indira Sawhneycase and affirmed the Balaji case and overruled the judgement of Thomas case. In the most recent case Chebrolu LeelaPrasad V state of Andhra Pradesh Supreme court of India again upheld the limit of 50%. Thus this 50% ceiling limit is constitutional rule but in exceptional circumstances like for far flung and remote areas this limit can be relaxed.
Our constitution has given us the right to equality as fundamental right. Right to equality means treating equals equally but treating unequal equally. Due to historical injustice to some backward classes they cannot be treated equally with rest of the society. Therefore to bring socio-economic equality in our society different constitutional provision is there. The notion of reservation is bought to uplift the disadvantaged and downtrodden people. But in numerous cases court held that reservation is about adequate representation not poverty eradication. The State would not be justified if in the zeal to promote the backward class the state will altogether ignore the rest of the society. If the state will compromise with the merit in admission in educational institution or in the employment in the Government jobs then it would affect badly the nation interest. Court in its decision held that the clause 4 of Article 15 is not exclusive provision but enabling provision to make special provision for backward classes. Clause 4 of Article 16 talks about adequate representation not about proportionate representation. The reservation exceeding 50% is unreasonable and unfair for the rest class. It would violate article 14, 15 and 16 of the constitution of India. However, in the extraordinary circumstances the 50% rule can be relaxed in favour of people living in remote areas of the country because of their peculiar conditions they need different treatment. In Union of India V Rakesh Kumar court allowed the reservation excess of 50% limit on the ground of extraordinary circumstances.
The parliament of India through 103rd constitutional amendment amended article 15 & 16 inserted Article 15(6) & 16(6) in our constitution and made provision of 10%reservation in favour of economic backward classes other than SCs, STs and OBCs. This will lead to crossing of 50% ceiling limit. There are number of petition has been filed against the amendment on the ground it violates basic structure of the constitution. Petitioner contention is that economic criteria cannot be sole basis of reservation. Supreme Court headed by Justice SA Bobde found that the petition has involved ‘question of law’ so it is transferred to 5 judge constitutional bench. In my eyes, the amendment violates the basic structure of the constitution. This amendment damages the constitutional identity of the Articles enshrined in the equality code. This constitutional amendment can be struck down by the Supreme Court if it affects the basic structure of the Constitution.
Right to equality is basic structure of the constitution. The provisions of reservation is to uplift the backward class and to bring them at the same level of the other class. But reservation should not be used to nullify the basic idea of equality. Rest of the people cannot be ignored in the zeal of promoting backward class. If merit will not allow to take admission in educational institution or in government services then it would seriously affect the interest of nation.
Pride does not cometh before a fall: The LGBTQ+ community, religion and media
A 2019 study by the Pew Research Center shows that about three quarters of U.S. Catholics have opined that society must be accepting of homosexuality and majority of Catholics in Western Europe are in favour of same-sex marriages, and yet, this has barely been reported. This poses the question: where does the problem lie?
As the LGBTQ+ community grew and collided with several religious beliefs of many religions, staunch believers in the religion resorted to forcing minors to conversion therapies or “gay cure therapy”. Conversion therapy is heavily criticised as being cruel and inhuman to the community. In Curbing deception – A world survey of legal restrictions of socalled ‘conversion therapies’ by ILGA, several extreme methods used in conversion therapy were identified, such as physical and sexual abuse, internment, electric shock therapy, hypnosis, hormone regimens, psychotherapy and religious counselling. It has been reported by the international LGBTQ organisation ILGA that these pseudo-scientific practices have a destructive effect on people’s lives from an early age and that the main reason for such practices still being accepted in the society is religion and prejudice.
Over the years, very few countries like Malta, Germany and Albania have actually banned conversion therapy taking the advice of several organizations like the WHO and psychologists. A few other countries like Canada, New Zealand and the U.K. have taken a step in the right direction in expressing their will to ban this practice. However, it is pertinent to note that, it is the 21st century and in this fastpaced world, these changes are not enough for the community to survive, much less, live. There have been several instances of people from the community being killed, tortured and even resorting to suicide because of conversion therapies all over the world but no serious action has been taken against this practice. Ironically, the countries that have taken a step towards banning this inhuman practice are facing the hurdle of religious groups from their country opposing the ban. Even recently, as Canada sought to ban the practice, the Catholic Bishops in the country expressed their objections to this and gender identity was even referred to as an “aggressive ideology” and against the moral fabric of the Canadian society. This is not just a view that has been taken by the religious followers of one religion in one country alone. Several religious groups all over the world believe that the LGBTQ+ community is merely a phase of children and can be cured if given the right atmosphere. One can only wonder if this is because of the lack of awareness or the rigid ideals of several religions on what is morally correct and wrong.
On one hand, psychologists around the world stood against conversion therapy stating that it is not effective and is also harmful to the community and on the other, religion has stood strongly against the community and encouraged people to cure it.
All negativity aside, the author would like to look into how religion, being an integral part of most peoples’ lives can actually contribute positively to fostering the needs of the community. Although some religions have shown express distaste regarding the community, several other religious groups have also promoted the marriage of same-sex couples in the past two decades, such as the Episcopal Church and the Presbyterian Church (USA). According to the 2019 Pew Research Center Survey, 66% of white mainline Protestants are in favour of same-sex marriages and a similar share of Catholics (61%) are as well. There have also been many instances of religion supporting the community in past few years. In May 2021, German Catholics offered blessings to same-sex couples in 100 different churches in the country, openly defying the ‘Congregation for the Doctrine of the Faith’ which said that the Catholic clergy cannot bless same-sex couples as God will not and cannot bless sin. More than 230 German theologians signed a statement expressing their stance against the Vatican’s pronouncement. Recently, Catholic parishes in New York have also taken efforts to build gay-friendly Catholicism. In addition, Rev. Dawn Bennet, Nashville’s first queer Lutheran pastor was ordained in 2021 and preached against antiLGBTQ hate in Tennessee. Revisiting the relationship between religious freedom and the LGBTQ+ community, the author would like to conclusively state that religion can most definitely complement the community and help them grow in a society that is weighed down by empty hatred.
Through this article, the author is not looking to validate the recent efforts taken by various religious groups but only contour how religion can help the community thrive substantially, even if the society and the government aren’t willing to accept and include the community in an express manner. When one delves deeper into this, one would be able to identify that people’s religious and spiritual experiences and beliefs manifest at an individual pace at cognitive, affective, physical and behavioural levels with the help of various studies. Religious fundamentalism has been noted to influence negative attitudes towards the community in the past and a study has even shown that the rejection of homosexuality by religion could be understood by authoritarianism and traditional beliefs of gender. But, one needs to place reliance on the strong influence that religious fundamentalism has and comprehend that religion has the potential to positively shape attitudes as well.
A 2019 study by the Pew Research Center shows that about three-quarters of U.S. Catholics have opined that the society must be accepting of homosexuality and majority of Catholics in Western Europe are in favour of same-sex marriages, and yet, this has barely been reported. This poses the question: where does the problem lie?
To find the answer to that question, one will have to delve into the subtle role played by the media in deepening the hatred against the community. Relying on the findings of a recent study, the author would like to throw light on how the news media coverage of LGBTQ+ rights and religion often highlights only religiously identified sources that stand against the community and this is contrasting to the support expressed by religious Americans. It was identified that several national and local media outlets had focused on the anti-LGBTQ sources more than the proLGBTQ sources.
While our earlier understanding in this article was that religion can shape attitudes, it is crucial to take into account that media can too. News could accidentally warp our perception of reality and this isn’t always for the better. One of the potential reasons for the ways that news affects our perception is through the hack of negativity-bias, which means that, when things of equal intensity are presented to a person, the things which are of negative nature will have a greater impact on the psychological state of the person as opposed to neutral or positive things. For example, when the City Reporter, an online news media based in Russia decided the publish only good news for just a day considering all the negative information surrounding people, it lost two-thirds of its readers. Through these factual scenarios, one can comprehend to an extent, if not fully, that media has thrived on feeding negative information to the public and, subconsciously it is what the public have craved for as well.
Change cannot be seen in a day, but it is only pragmatic to note that there has been change. As several people struggle with accepting change, media has only furthered this aversion. Admittedly, religious fundamentalism has dismissed of homosexuality through the years and promoted conversion therapies. But, it is time for change and several majority religious groups like Christians, Muslims and Hindus are beginning to comprehend that homosexuality is not a disease and traditional gender norms cannot be placed complete reliance on in the 21st Century. As lay men in the society, we read the news on hate crimes and oppositions against the community and develop a negative bias. As the efforts of several religious groups go unreported, more religious groups fail to stand up for the rights of the community, and as media focuses on how religious groups have not stood up for the community, the LGBTQ+ community develops a negative bias against them. The lack of awareness has always contributed to the perception against the community. Media outlets, being our source of information have the responsibility to report news in a manner that focuses on both the good and the bad, without leaving out information for their benefit. People need to be taught about digital literacy in order to find reliable sources and understand how clicking on news regarding hate crimes will only show you more content that adds to the bias against the community. Only when people start to understand that there has been change in the past few years and acceptance is not far away, will the hate crimes stop and the bias be eliminated, and only when news becomes more objective rather than emotional will things begin to look less bleak for the community as well as the entire society.
To find the answer to that question, one will have to delve into the subtle role played by the media in deepening the hatred against the community. Relying on the findings of a recent study, the author would like to throw light on how the news media coverage of LGBTQ+ rights and religion often highlights only religiously identified sources that stand against the community and this is contrasting to the support expressed by religious Americans. It was identified that several national and local media outlets had focused on the anti-LGBTQ sources more than the pro-LGBTQ sources.
Offence of extortion not made out in absence of delivery of property: Chhattisgarh HC
While clearing the air on when the case of extortion is made out, the Chhattisgarh High Court in a learned, laudable, landmark and latest judgment titled Shatrughan Singh Sahu v. State of Chhattisgarh & Ors. in WPCR No. 133 of 2017 that was reserved on July 27, 2021 and then finally pronounced on September 7, 2021 has held in no uncertain terms that to make out a case of ‘extortion’ punishable under Section 384 IPC, the prosecution must prove that on account of being put in fear of injury, the victim voluntarily delivered any particular property to the accused. It must be apprised here that the single Judge Bench of Justice Narendra Kumar Vyas of Chhattisgarh High Court said unequivocally that if there were no delivery of property, then the most essential ingredient for constituting the offence of ‘extortion’ would not be available. Justice Vyas also made it clear that if a person voluntarily delivers any property without any fear of injury, then also an offence of ‘extortion’ cannot be said to have been committed.
To start with, the single Judge Bench of Justice Narendra Kumar Vyas of Chhattisgarh High Court sets the ball rolling by first and foremost observing in para 1 that, “The petitioner, who is an Advocate by profession, has filed the present writ petition (cr.) challenging the registration of First Information Report against him under Sections 384 and 388 of IPC on the basis of complaint filed by respondent No.5 Kuleshwar Chandrakar before the Police Station Rudri in connection with Crime No. 106 of 2015 on 9-10-2015 and subsequently, the Police has submitted the final report before the learned Chief Judicial Magistrate, Dhamtari, now the case has been transferred to learned Judicial Magistrate First Class, Dhamtari, bearing Criminal Case No. 1405 of 2015 (State vs. Shatrughan Saho).”
As we see, the Bench then enunciates in para 2 that, “Brief facts, as projected by the petitioner in the present petition are that the Government of Chhattisgarh has enacted the Shakambhari (Nal-Jal) Scheme for benefit of agriculturists by granting subsidy. The beneficiary farmers applied for irrigation instrument in the Department of Agriculture. As per scheme, the State Government is giving them instrument and subsidy after following certain procedure. The Rural Agricultural Extension Officer, Village and Post Bhatgaon, Tahsil Kurud, District Dhamtari, Agricultural Development Officer, Village and Post Charmudiya, Tahsil Kurud, District Dhamtari, Agriculture Sub Divisional Officer, Collectorate Dhamtari, Deputy Director Agricultural Collectorate, Dhamtari and respondent No.5/complainant Kuleshwar Chandrakar and Roshan Chandrakar, Proprietor of Shri Ram Bore-wells have committed gross embezzlement at the time of granting subsidy to the concerned agriculturists, therefore, the petitioner made a complaint before the Collector, Dhamtari on 3-3-2015 and 24-4-2015 with regard to corruption done by them.”
To put things in perspective, the Bench then envisages in para 3 that, “On 18-3-2015 the petitioner made a complaint before the Superintendent of Police, Dhamtari for registration of FIR against the corrupt employee/officers. Again, the petitioner along with other person namely Naresh Kumar has also filed a complaint before the Superintendent of Police, Dhamtari stating that the persons involved in the embezzlement under the Shakambhari (Nal Jal) Scheme threatened them to cause death. But the respondent authorities i.e., Collector and Superintendent of Police, District Dhamtari and Director of Agriculture Department Raipur did not take any action against the corrupt persons including the respondent No.5.”
As it turned out, the Bench then observed in para 4 that, “The Superintendent of Police has directed Rudri Police Station to enquire into the matter. Though the statements of persons namely Manik Ram, Tomar Sahu, Abhimanyu and Devendra Kumar have been recorded and all have supported the case, still Police has not taken any action against the erring officials. Being aggrieved, the petitioner has filed complaint under Section 156(3) of Cr.P.C before the learned District and Sessions Court, Dhamtari for registration of offence under Prevention of Corruption Act. On 9-10-2015, the complainant Kuleshwar Chandrakar lodged FIR against the petitioner contending that the petitioner has demanded Rs.25,00,000/- by way of extortion. Police has registered the FIR without conducting any preliminary enquiry. Though the petitioner was present at his office along with other advocates on 9-10-2015, still he has been roped in crime number 106 of 2015 for committing alleged offence under Sections 384 and 388 of IPC.”
While continuing in the same vein, the Bench then brings out in para 5 that, “On 20-12-2015 the petitioner has submitted an application before the Police Station Rudri and prayed for an opportunity of defence and also submitted the representation on 24-12-2015 along with documents, but the same has not been considered. On 31-12-2015 when the petitioner was going to court, at that time four persons came in motorcycle and threatened the petitioner by pressing and compelled him to do compromise and withdraw the complaint. On 31-12-2015 the petitioner made a complaint before the Superintendent of Police, Dhamtari but no action has been taken. The Police on the strength of the FIR lodged by respondent No. 5, after investigation, registered the offence and final report has been submitted before the Chief Judicial Magistrate, Dhamtari. Now the case is transferred to the court of Judicial Magistrate First Class, Dhamtari and learned Magistrate registered the case bearing Criminal Case No. 1405 of 2015.”
Needless to say, the Bench then discloses in para 6 that, “On the above factual matrix of the case, the petitioner prayed for quashing of FIR registered against the petitioner in connection with Crime No. 106 of 2015 at Police Station Rudri, District Dhamtari for offence under Sections 384 and 388 of IPC.”
Truth be told, the Bench then unfolds in para 7 that, “This Court issued notice to the respondents and in pursuance of notice, respondent No.5 has entered his appearance and filed his return. The State counsel has also filed their return in which they have stated that on the basis of complaint made by the petitioner, an enquiry has been conducted by the Additional Collector & Inquiry Officer, Dhamtari has submitted his report on 28-11-2016 wherein charges levelled against respondent No.5 and other Government officials have been found false and baseless. It has also been stated that the petitioner being an Advocate indulged in making complaint with regard to corruption under the scheme of the State Government and requesting for registration of FIR. It is further contended that the petitioner made another complaint before the Superintendent of Police, District Dhamtari, regarding corruption being made in the Rajya Poshit Sukshma Sichai Yojna by one Roshan Chandrakar which was enquired into and upon enquiry no incriminating was found for taking cognizance and the complaint of the petitioner was found to be false and baseless and copy of the report has been forwarded by the Incharge of Police Station, Dhamtari to the Superintendent of Police, Dhamtari on 7-2- 2015. He would further submit that the charges leveled against respondent No.5 are false and baseless, therefore, the petition filed by the petitioner deserves to be dismissed by this court.”
Simply put, the Bench then states in para 8 that, “Complainant/respondent No.5 has also filed his return in which he denied the allegations made by the petitioner and would submit that as per material collected by the Investigating Officer case under Section 384 and 388 of IPC is made out. It has been further contended that the petitioner is a habitual complainer and blackmailing the people and he has filed a complaint against the Officer of the Agriculture Department alleging certain irregularities and thereafter vide letter dated 24-10-2015 has withdrawn the same which clearly shows the conduct of the petitioner itself. He would further submit that prima facie the allegations leveled against him are made out, therefore, the writ petition, at this juncture is not maintainable and is liable to be dismissed by this court.”
Furthermore, the Bench then remarked in para 9 that, “The petitioner has filed his rejoinder on 24-6-2021 and would submit that at the time of incident, the petitioner was in the court of Chief Judicial Magistrate to argue the criminal case and in this regard a copy of the order sheet thereof has also been annexed. He would further submit that he has been falsely implicated in this case as he was not present at the time of alleged incident, therefore, the story projected by the complainant is false, baseless and cannot be accepted at this juncture and would pray that the petition filed by him be allowed and the criminal proceeding be quashed. In support of his arguments, he has relied upon the judgments rendered by Hon’ble Supreme Court in State of Haryana vs Bhajanlal reported in 1992 Suppl. (1) SCC 335.”
Significantly, the Bench then states in para 15 that, “Learned counsel for the petitioner would submit that from perusal of the FIR it is nowhere reflected that on extortion made by the petitioner, complainant/respondent No.5 has delivered any valuable property to the petitioner, as such, he has not committed offence under Section 384 of IPC. Even from perusal of the final report, it is clear that the documents submitted by the investigating agency regarding statements of the witnesses, none of the witnesses has stated that on extortion made by the petitioner by demanding Rs.25,00,000/- from respondent No.5. The respondent No. 5 has given Rs.25,00,000/- to the petitioner, as such, there is no ingredient of offence under Section 384 of IPC is made out.”
Of course, the Bench then points out in para 16 that, “It would be evident from the reading of Section 383 of the IPC that the ingredients of ‘extortion’ are; (i) the accused must put any person in fear of injury to that person or any other person; (ii) the putting of a person in such fear must be intentional; (iii) the accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security; (iv) such inducement must be done dishonestly. The terms ‘dishonestly’, ‘illegally’ and ‘injury’ used in “Section 383 of the IPC” and in “Sections 24, 43 and 44 of the IPC” respectively. On a careful consideration of the above definitions and ingredients what appears is that if someone puts the others intentionally in fear to any injury and thereby, dishonestly induces that person who has been put into fear to deliver to the person any property or valuable security or anything signed or sealed or which may be converted into valuable security shall be liable to be punished for ‘extortion’.”
Most significantly, what forms the cornerstone of this brief, brilliant and balanced judgment is then stated in para 17 wherein it is put forth that, “Thus, what is necessary for constituting an offence of ‘extortion’ is that the prosecution must prove that on account of being put in fear of injury, the victim was voluntarily delivered any particular property to the man putting him into fear. If there was no delivery of property, then the most important ingredient for constituting the offence of ‘extortion’ would not be available. Further, if a person voluntarily delivers any property without there being any fear of injury, an offence of ‘extortion’ cannot be said to have been committed.”
While citing the relevant case law, the Bench then stipulates in para 18 that, “Hon’ble Supreme Court in R.S. Nayak vs. A.N. Antulay and another, reported in (1986) 2 SCC 716, has held in para 60 and relevant portion thereof is extracted as under:
“60. Before a person can be said to put any person to fear of any injury to that person, it must appear that he has held out some threat to do or omit to do what he is legally bound to do in future. If all that a man does is to promise to do a thing which he is not legally bound to do and says that if money is not paid to him he would not do that thing, such act would not amount to an offence of extortion. We agree with this view which has been indicated in Habibul Razak v. King Emperor, A.I.R. 1924 All 197. There is no evidence at all in this case that the managements of the sugar cooperatives had been put in any fear and the contributions had been paid in response to threats. Merely because the respondent was Chief Minister at the relevant time and the sugar co-operatives had some of their grievances pending consideration before the Government and pressure was brought about to make the donations promising consideration of such grievances, possibly by way of reciprocity, we do not think the appellant is justified in his contention that the ingredients of the offence of extortion have been made out.
The evidence led by the prosecution falls short of the requirements of law in regard to the alleged offence of extortion. We see, therefore, no justification in the claim of Mr. Jethmalani that a charge for the offence of extortion should have been framed”.”
Be it noted, the Bench then observes in para 21 that, “From perusal of the aforesaid judgment, it is apparent that the alleged offence under Section 384 of IPC has been quashed on the ground that no valuable assets have been delivered because of extortion, threaten, pressure created by the accused. In the present case also respondent No.5 has not delivered any valuable assets to the petitioner, therefore, the judgment referred to by respondent No.5 also support the contention of the petitioner and in that case also Madhya Pradesh High Court held that offence under Section 384 of IPC is not made out. Therefore, the judgments cited by learned counsel for respondent No.5 are distinguishable from the facts of the present case.”
Quite forthrightly, the Bench then holds in para 22 that, “From bare perusal of the FIR it can be very visualized that if we take the face value of the allegation made in the complaint, then also it can be very well seen that no offence under Section 388 of IPC is made out as respondent No.5 in his complaint has nowhere stated that on the basis of extortion made by the petitioner, respondent No.5 was put in fear of an accusation by the petitioner or he committed or attempted to commit any offence punishable with death and has delivered any valuable assets to the petitioner. When prima facie provisions of Section 383 of IPC is not made out, then the offence under Section 388 of IPC cannot be made out, because unless and until the ingredient of extortion is established, then only the alleged offence, prima facie, is said to have been committed by the petitioner. Since the ingredients of Sections 383 of IPC are not made out, the ingredient of Section 388 of IPC cannot be, prima facie, established, therefore, registration of FIR, prima facie, is nothing, but an abuse of process of law.”
To put it succinctly, the Bench then hastens to add in para 26 that, “From bare perusal of FIR it is crystal clear that no case of extortion is made out, therefore, offence under Sections 384 and 388 of IPC against the petitioner is not made out. The proceeding initiated by the complainant is nothing, but an abuse of process of law and on this count alone this court is quashing the FIR, therefore, no other ground is required to be dealt by this court.”
It is worth noting that the Bench then holds in para 27 that, “In view of above legal provisions, considering the facts of the case and from perusal of FIR, prima facie, no case is made out against the petitioner and criminal proceedings is manifestly attended against the petitioner with malafide, therefore, initiation of criminal proceeding is nothing, but an abuse of process of law.. Considering overall the facts and circumstances of the case, I am of the view that the petitioner has made out strong case for quashing of FIR. Accordingly, FIR No. 106 of 2015 registered at Police Station – Dhamtari on 9-10-2015 for alleged offence said to have been committed under Section 384 and 388 of IPC is quashed. Consequently, the criminal proceeding pending before the Judicial Magistrate First Class, Dhamtari is also quashed.”
As a corollary, the Bench then holds in para 28 that, “Accordingly, the instant petition is allowed. No order as to costs.”
Finally, the Bench then holds in para 29 that, “A copy of this order be sent to learned Judicial Magistrate First Class, for closure of the proceedings.”
All said and done, the inescapable conclusion that can be drawn from this noteworthy judgment is that the offence of extortion is not made out in absence of delivery of property. It is a no-brainer that the property has to be delivered in order to prima facie make a case of offence of extortion. It is also made amply clear that the victim too must be put in fear of injury before he/she delivers the property. To put it differently, if there is no fear of injury and property is still delivered then the offence of extortion cannot be prima facie said to be made out!
Scope of the application of doctrine of identification to company law in India
In H.L. Bolton Company v. T.J. Graham & Sons, Lord Denning explained the position and
said that the company could in many terms be equated with a human body. They do have a
brain and a nervous centre which controls the entire body. They have people as their hands
and legs, under instructions of whom work of the nervous centre is carried out.
The concept of Doctrine of Identification finds its roots in the English Law. The growth of this doctrine has helped in the implication and prosecution of the criminal activities of directors/ managers of many companies. The corporate personality of a company is different and separate from the promoters, directors or owners of the company. This is a widely known principle in law and has its source in the celebrated case of Solomon v. Solomon. In this case, the Court held that the corporate entity is different from the people who are in the business of running of the company. The misuse of this principle led to “Lifting of the Corporate Veil” wherein the shareholders or creditors of the company are protected if the company is engaged in any fraud or other criminal activities.
A corporate entity can sue and be sued in its own individual name. In criminal cases, the company can be prosecuted against but it is quite ineffectual as the company cannot be punished with imprisonment or death. The only punishment that can be levied on the company is by way of fine, which at times is quite minimalistic. The question then raised is whether a company can ever be prosecuted for criminal offences and be punished with more than just a monetary fine.
EVOLUTION OF THE DOCTRINE OF IDENTIFICATION
The 1940s saw the emergence of a new mechanism to impute criminal liability to Corporations in the form of the “identification principle.” Until the 1940s, the courts stuck firmly to the view that it was inappropriate to bring a prosecution against a Company for common law offences requiring proof of a subjective mental element. However, through the 1940s it was observed in a variety of cases that a Company is capable of being malicious, can intend to deceive and can conspire.
First, was the case of DPP v. Kent and Sussex Contractors, in which the Company was charged under the Defence (General) Regulations, 1939 of making use of a document which was false in a material particular and making a statement which they knew to be false in a material particular, with an ‘intent to deceive.’ The Company was made liable.
Next, was the case of R v. ICR Haulage Ltd., in which the Company was charged and found guilty for ‘conspiring to defraud’ and thirdly, was the case of Moore v. Bresler, in which the Company faced charges for embezzlement and tax evasion under the Finance Act No. 2, 1940.
Among the three, the most important was the case of R v. ICR Haulage, since it was the only case among the three to deal with a nonstatutory offence.
In H.L. Bolton Company v. T.J. Graham & Sons, Lord Denning as explained the position and said that the company could in many terms be equated with a human body. They do have a brain and a nervous centre which controls the entire body. They have people as their hands and legs, under instructions of whom work of the nervous centre is carried out. Lord Denning equated the brain and nervous system to the directors and managers who represent the directing will of the company. He held that:
“The state of mind of these managers is the state of mind of the company and is treated by law as such. So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company themselves guilty.”
In the celebrated case of Tesco Supermarkets Ltd. v. Nattrass, the Appellant was marketing a packet of washing powder at a price lower than the market price, but the Defendant did not find the packet of washing powder at the reduced price, as advertised. The Defendant therefore filed a complaint under the Trade Descriptions Act, 1968. One Mr. Clemant of the Appellant was in charge of the packets with the reduced price being displayed in the store. Lord Reid discussed the law relating mens rea and the importance of the same in criminal law.
“A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company’s servant or agent. In that case any liability of the company can only be a statutory or vicarious liability”
Lord Reid also discussed which people can be ‘identified’ with the company. He stated that the main considerations are the relative position he holds in the company and the extent of control he exercises over its operations or a section of it without effective superior control. In this case, it was held that the shop manager could not be identified with the company.
In Meriden Global Funds Management Asia Ltd. V. Securities Commissioner, Lord Hoffman discussed the principle of identification and stated that if an employee had be considered the ‘directing mind and will’ of the company, the employee should have the authority to act as he did. In the same case, the Court in its obiter stated that conviction of a smaller company is easier (on application of this principle) because the relationship between the culprit and the company can be identified with more ease and certainty. That is not the case in larger companies.
In Lennard’s Carrying Co. v. Asiatic Petroleum Co., Viscount Haldane propounded the “alter ego” theory and distinguished that from vicarious liability. The House of Lords stated that the default of the managing director who is the “directing mind and will” of the company, could be attributed to him and he be held for the wrongdoings of the company. It was famously stated that:
“a corporation is an abstraction. It has no mind of its own any more than a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes maybe called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”
There was a different view taken in Tesco Stores Ltd. V. Brent London Borough Council wherein a store clerk sold a over -18 video to an underage customer. The Court noted that Doctrine of Identification could not be applied here and the company was hence not liable. The reason for this decision was that in a large company, the senior management could not be expected to know each and every customer and whether the customer was a minor or not. In that event to locate a person for this knowledge was hence impossible and the doctrine of identification was hence inapplicable in this case.
Again in R v. Redfern & Dunlop Ltd. (Aircraft Division), the Court held that where the employees who were not in the decision making level could not be ‘identifiable’ with the company and therefore were not deemed to be the controlling mind of the company. The question that comes up is that if a person at a lower level commits a crime in the name of the company, the company cannot be held liable for the same. This may pose to be a problem in the sense that the company may make a division between the senior management and the employees to avoid criminal proceedings against them.
SCOPE IN INDIA
We are also going to examine the growth and importance of the Doctrine of Identification in Indian Law during the recent years. The most recent judgment of the Supreme Court in the Reliance Natural Resources Limited v. Reliance Industries Limited, discusses the Doctrine of Identification. This case is a dispute over two brothers namely Mukesh Ambani led RIL and Anil Ambani led RNRL. After the death of their father Mr. Dhirubhai Ambani, the entire Ambani Group of Companies was divided between the two brothers. An arrangement was reached between the parties, with their mother as the mediator. Mukesh Ambani had in this family arrangement, made certain concessions on behalf of the RIL, which RNRL had sought to rely upon in the present case.
The Bombay High Court in its judgment held that Mukesh Ambani being the majority shareholder of the company was hence the ¨controlling mind and will¨ of the company. The observation of the judges was that in the Identification Doctrine, the company was “identified with such key personnel through whom it works”. These “key personnel” were described to be the alter ego of the company and their actions were deemed to be the actions of the company itself.
The Supreme Court overruled the judgment of the Bombay High Court in respect of the Identification Doctrine. It observed that the family arrangement was between three parties namely the mother and the 2 sons.
The legal entity of the company was different than the individual entity and in the present case, the company having more than a million shareholders, one person could not be said to have had the knowledge with respect to the company, which knowledge he had in his personal capacity. The court discarded this doctrine on the fact that the facts of the case did not fall into their preview.
The other Indian cases where the Courts have followed the doctrine of identification are Union of India v. United India Insurance Co. Ltd. and others and Assistant Commissioner, Assessment –II, Bangalore and others v. Velliappa Textiles Ltd. & Ors.
The first case was about an accident that occurred at an unmanned level railway crossing in Kerala when a hired vehicle was hit by a train passing through and passengers were injured and the driver was also killed. Claims were made by the injured and the relatives of the deceased and after many appeals, the case reached the Supreme Court. The question in that scenario was whether the passengers were to be held liable as the driver who was negligent was appointed or retained by them. The court discussed the principle of identification or imputation, in the present case whether the defendant can plead contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of his business.
In the second case, the question was whether in the case of criminal misdemeanors, the employees can be charged with imprisonment or is the company is liable for fine and/or imprisonment. The Court held that the director / mangers of the company, who are the directing will and mind of the company, should be held liable. The case of U.S. Supreme Court in New York Central & Hudson River Railroad Company v. United States stated that.
“It is true that there are some crimes which, in their nature, cannot be committed by corporation. But there is a class of offences, of which rebating under the Federal statutes is one, wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred on them. If it were not so, many offences might go unpunished and acts be committed in violation of law where, as in the present case, the statute required all persons, corporate and private, to refrain from certain practices, forbidden in the interest of public policy.”
The directors/ managers try to avoid the penalty by taking the defense that the company being a separate legal entity, should be prosecuted separately. The problem that arises in particularly criminal cases is that, the punishment for the crimes are fine and / or imprisonment. If the offender is a company, only a monetary penalty can be imposed. This led to more offences being committed on the name of the company by the directors/ managers, who are protected under the “separate legal entity” theory.
By this doctrine of identification, those offenders are being held liable for the acts committed by the company. The main objective of the doctrine is to punish the people who are actually committing the crime who are the brain and mind of the company through which the crime is being committed.
The Bombay High Court in its judgment held that Mukesh Ambani being the majority shareholder of the company was hence the ¨controlling mind and will¨ of the company. The observation of the judges was that in the Identification Doctrine, the company was “identified with such key personnel through whom it works”. These “key personnel” were described to be the alter ego of the company and their actions were deemed to be the actions of the company itself
MAKING IT HAPPEN: LEND A HAND INDIA
I was on an official visit to Pune as Secretary, School Education, Government of India during 2017. Raj Gilda, co-founder of Lend A Hand India had been after me for a while to visit one of the schools run by the organization to impart vocational education to high school students. Despite wanting to, I had not been able to squeeze time out of hectic schedule. When he got to know about my visit to Pune, he once again approached me. Impressed by his perseverance and persistence, I decided to visit the school on the way to the airport as I was returning to Delhi. What I saw was an amazing demonstration of dedicated work.
Journey of Lend A Hand India (LAHI) began when the co-founders, Sunanda Mane and Raj Gilda visited Vigyan Ashram, an NGO running 1 year full time residential skill development program for rural youth in 1995. Ten years later, while they had settled in New York, they thought of ‘giving back’ and work for the cause of education back in India. They believed that real life vocational education could naturally complement existing educational curriculum and provide students with a more hands on experience. In partnership with Vigyan Ashram, they launched the multi skill vocational education program in 100 secondary schools with the consent of Maharashtra Government. The program was evaluated by Tata Trust in 2011 and demonstrated significant impact. This led Sunanda and Raj to quit their full time jobs in New York with UN and Citibank respectively and focus full time on LAHI.
The flagship program supported by LAHI, “Multi Skill Foundation Course” complements the existing secondary school curriculum of Grade 9 and 10 with skill education to help the students learn better. It provides students with practical focused hands-on experience in skills such as health and hygiene, food processing, gardening, electrical wiring, woodwork etc. Without any gender bias, boys learn cooking and girls learn electrical wiring. Students curiously undertake minor installations such as electric bell, repair of a bench, growing vegetables and selling in market, or helping at home to change fuse wire or fix a mixer. The course is now a 100 marks subject with the state board exam and certification.
As LAHI was exploring scaling up strategies in 2013, they were introduced to Suvarna Kharat, Joint Secretary, Government of Maharashtra, who was then heading the state for scheme of “Vocationalisation of School Education” by Central Ministry of Education. With support from dynamic Secretary of Education, Ashwini Bhide who was later succeeded by another efficient IAS officer, Nandkumar and the guidance from an extremely supportive Joint Secretary, Ministry of Education, Radha Chauhan, LAHI began its journey of forming strong partnership with State Governments to implement and scale up vocational education in the State. Qualified staff was identified, trained and paid by LAHI. It worked side by side with the State Department of Education with strong focus on policy execution. LAHI team members were co-located and work with the government officials to prepare a long-term strategic roadmap, annual plans, and execute the policy. LAHI also set up demonstration model in government schools to showcase model school and the best practices. It is an ideal example of three-way, public-private partnership, where the nonprofit delivers technical and domain expertise, funded by philanthropic capital, and backed by policy making power of the State Governments. To retain the independence and avoid conflict of interest, the support is provided at no financial cost to the Government. LAHI’s partnership with the state of Maharashtra set an ideal example of how three pillars of our society (private, civil society and the government) can come together to achieve greater good.
Emergence of LAHI’s State partnership model coincided with regional workshops by the Central Government where many innovative models of public-private partnerships were showcased. With the support the Central Government, LAHI replicated the Maharashtra model in 24 states/UTs across India covering 10,000+ schools and 1 million plus students each year.
LAHI also partnered with the State of Maharashtra to get National Skills Qualification Framework (NSQF) compliance for “Multi Skill Foundation Course”. It also secured support from G P Upadhyay, a visionary IAS officer in the State of Sikkim. Many other states also joined in this path-breaking achievement wherein an innovative grassroots program was recognized by a National Body. Subsequent to recognition as NSQF Compliant, the Multi Skill Foundation Course is currently offered in 10 states.
Another important focus area, identified by LAHI’s decade long experience is ‘internships’ – hands on experience in real life situation. Starting 2017, LAHI has been focusing on ‘internship’ for Grade 11/12 students with small and micro enterprises in Pune during summer/winter vacation in partnership with Pune Municipal Corporation. Internship has now become part of the national policy. The initial results of the internship program have been extremely encouraging e.g. 76% employers were willing to hire the students who had completed internships, 82% of the parents say that they would have no problems in allowing their daughters to pursue a non-traditional careers, 90% students felt that internship helped them develop employability skills, and 88% students felt that it helped them make informed career choices.
Ultimately, LAHI hopes to remove the age old misconception about vocational education that it is for economically weaker class, or only for those who are not good in studies. A strong believer in Gandhiji’s philosophy of “Buniyaadi Shala” and “Nayi Taalim”, LAHI hopes to restore dignity of labor by introducing the young minds to “learning by doing”.
It has launched a program to revive three Buniyaadi Schools in West Champaran District in Bihar started by Gandhiji as a homage to him during the 150th birth anniversary year.
LAHI has demonstrated that despite challenging set of circumstances, appropriate and meaningful vocational training can be imparted. They made it happen. NEP2020 has placed huge emphasis on vocational education with the aim to introduce vocational education in 50% of the schools by 2025. LAHI can contribute to bring this policy objective to reality in the years to come.
FORGIVENESS HAS POWER TO MAKE WORLD A PARADISE
Jain principles and philosophy are a wonderful amalgamation of nature, science and humanity
I consider myself fortunate that I have got an opportunity to be associated with religious scholars and knowledgeable persons from different religions. From the early days of my life, I have been curious about knowing and understanding religion. Spiritual values imbibed in me by my grandmother, Bai (mother), father and my life partner Jyotsna made me open to accept the teachings of all religions. It did not even occur to me to criticise any religion. Festivals of different religions make me joyous and I strongly believe that this diversity makes India different from other nations in the world.
Religion is not an outer covering but is a medium to awaken your inner soul. You follow any religion, they all show you the right path. There is no place for hatred in the religion but unfortunately today bloodbath is being witnessed in the name of the religion. The cruelty in the name of the religion upsets me and I always think when will this environment change. Will it ever change? If yes, what will be the way of change? I can see this path in the teachings of Bhagwan Mahavir Swami. I would like to make it clear that I do not want to assert the supremacy of Jain religion. I feel that for every individual his/her religion is supreme and that should be so.
However, if there are principles in other religions or beliefs that can make life better, there is no harm in accepting them. In my personal life, I have learnt a lot from other religions apart from Jainism and I also follow these teachings. All religious books and symbols are available at my Pooja place.
I am discussing the Jain way of life and philosophy here because there are principles in this religion which can show us the new way. I would first like to speak about Kshama (forgiveness). Of course, it’s not as easy as saying or writing it. So, it has been aptly written in the Jain philosophy – Kshama Veerasya Bhushanam. Only the one who is strong and brave can learn the art of forgiveness. There is a need of inner strength to seek forgiveness from somebody and even more power is required to forgive somebody. When we speak of forgiveness, it includes developing capacity to not only forgive others but to forgive self too.
In fact, the Jain philosophy speaks about going beyond human life and seeking forgiveness from the entire living beings in the universe. The teaching here is clear, we are committed to maintain in its originality this Earth, sky and the unknown other world that nature has gifted us with. In fact, this is the teaching of every religion.
This is why it is essential that every individual wears the ornament of forgiveness. For this, one will have to modify oneself. One needs to attain that purity of soul wherein even the thought of harming somebody does not arise in the mind. Jain philosophy teaches us that even thinking of harming somebody is an act of violence. It is obvious then that when we develop the capacity to imbibe forgiveness at this spiritual level, the thought of non-violence will occur naturally to us.
Non-violence is in fact the highest moral virtue. This concept of forgiveness and non-violence is the basis of Jain philosophy. Sadly, in today’s world maximum violence is being carried out in the name of religion. Throats of each other are being slit. Merchants of religion are brandishing the weapon of greatness of their religion. The horrific and cruel hand of terrorism is looking to take the entire humanity in its clutches.
I feel that the non-violence has the strength to fight even this draconian hand of terrorism. I am not dwelling on some theoretical aspect. Our freedom struggle has been witness to the power of non-violence. The empire on which Sun never set was ousted by Mahatma Gandhi with the power of truth and non-violence. Jain philosophy has taught us this lesson of truth and non-violence ceaselessly for the last thousands of years.
If forgiveness, truth and non-violence are in our life, renunciation will become part of our life naturally. Greed will never occur if we desire only for what is essential for life. This will make the path of our life easy. Right philosophy (Samyak Darshan), right knowledge (Samyak Dnyan) and right character (Samyak Charitra) will become part of our life.
Jain philosophy teaches us pluralism that is the ability to understand others. Today, all feel that they are right but actually till you understand the point of view of others, you cannot do justice to yourself too. Can a trader’s business be successful if he cannot understand the perspective of his customer? Similarly, if everybody begins to understand each other’s point of view, there will be no conflict.
When there will be no conflict, there will be no war. If looked at from a broader perspective, the entire humankind will be able to live in peace and harmony. We will be able to create a world where there will be no need of hoarding arms. The money we are spending on arms can be spent on education and health of the masses.
This may sound a hollow thought now but during its journey mankind has done what it has resolved to do. The man has reached the Moon. Technology has developed a lot. If the man resolves to make forgiveness as his ornament, no power in the world can stop him. We will then, in true sense, be able to say Vasudhaiva Kutumbakam (The whole world is a family).
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
We have just celebrated Paryushan Parva and sought forgiveness from each other. Just imagine what the world would look like if everyone acquired the ability to forgive and seek forgiveness! Then the world will be even better than the paradise of our imagination. Non-violence too is also born out of forgiveness.
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