DAYARAM v. SUDHIR BATHAM & Ors.

in Madhuri Patil, which directed that "in case the writ petition is disposed of by a single Judge, then no further appeal would lie against that order to the division bench, but subject to special leave under Article 136." The present appeals were referred by a two Judge B bench, by order of reference doubting the legality and validity of the directions issued in Madhuri Patil. In Madhuri Patil, a two Judge Bench of this Court found that spurious tribes and persons not belonging to scheduled tribes were snatching away the reservation C benefits given to genuine tribals, by claiming to belong to scheduled tribes and was therefore of the view that the caste certificates issued should be scrutinised with utmost expedition and promptitude. To streamline the procedure for the issuance of a caste (social status) D certificates, their scrutiny and approval, this Collrt issued fifteen directions. In view of the reference order, the following questions arose for consideration: (i) Whether directions 1 to 15 in Madhuri Patil are impermissible, being legislative in nature? (ii) Whether directions 11 and 12 in Madhuri Patil, which exclude the jurisdiction of the civil court to entertain suits challenging the decisions of the Caste Scrutiny Committees, violate section 9 of the Code of Civil Procedure? (iii) Whether direction 13 in Madhuri Patil barring intra-court appeals against decisions of Single Judges in writ petitions, when such appeals are specifically provided for in State enactments/Letters Patents, is valid and proper? Disposing the appeals, the Court HELD: E F G H DAYARAM v. SUDHIR BATHAM & ORS. 1097 Re: Question (i) directions (1) to (15) in Kumari Madhuri A Patil in general

#1. The Supreme Court has a constitutional duty to protect the fundamental rights of Indian citizens. Whenever this Court found that the socio-economic rights of citizens required to be enforced, but there was B a vacuum on account of the absence of any law to protect and enforce such rights, this Court has invariably stepped in and evolved new mechanisms to protect and enforce such rights, to do complete justice. This has been done by re-fashioning remedies beyond traditionally available under writ jurisdiction by issuing appropriate directions or guidelines to protect the fundamental rights and make them meaningful. [Para 6] [1111-F-G] those c

1.2. In a given situation when laws are found to be D inadequate for the purpose of grant of relief, the court can exercise its jurisdiction under Article 142 of the Constitution. The directions issued by this court under Article 142 from the law of the land in the absence of any substantive law covering the field and such directions "fill E the vacuum" until the legislature enacts substantive law. This court has issued guidelines and directions in several cases for safeguarding, implementing and promoting the fundamental rights, in the absence of legislative enactments. [Para 10] [1115-A-C] F

1.3. The directions issued in Madhuri Patil were towards furtherance of the constitutional rights of scheduled castes/scheduled tribes. As the rights in favour of the scheduled castes and scheduled tribes are a part of legitimate and constitutionally accepted G affirmative action, the directions given by this Court to ensure that only genuine members of the scheduled castes or scheduled tribes were afforded or extended the benefits, are necessarily inherent to the enforcement of fundamental rights. In giving such directions, this court neither re-wrote the Constitution nor resorted to 'judicial H 1098 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R. A legislation'. The Judicial Power was exercised to interpret the Constitution as a 'living document' and enforce fundamental rights in an area where the will of the elected legislatures have not expressed themselves. Directions issued in the exercise of Judicial Power can fashion 8 modalities out of existing executive apparatus, to ensure that eligible citizens entitled to affirmative action alone derive benefits of such affirmative action. The directions issued in Madhuri Patil are intrinsic to the fulfillment of fundamental rights of backward classes of citizens and C are also intended to preclude denial of fundamental rights to such persons who are truly entitled to affirmative action benefits. [Para 12] [1115-H; 1116-A-E] 0 E F

1.4. The directions in Madhuri Patil are based on a principle. The principle is wherever the interests of weaker sections are adversely affected due to unscrupulous acts of persons attempting to usurp the benefits meant for such weaker sections, court can, and in fact should, step in, till a proper legislation is in place. [Para 13] [1117-8-D]

1.5. The directions 1 to 15 issued in Madhuri Patil in exercise of power under Articles 142 and 32 of the Constitution, are valid and laudable, as they were made to fill the vacuum in the absence of any legislation, to ensure that only genuine scheduled caste and scheduled tribe candidates secured the benefits of reservation and the bogus candidates were kept out. By issuing such directions, this court was not taking over the functions of the legislature but merely filling up the vacuum till legislature chose to make an appropriate law. [Para 14] [1117-E-F] G S. P. Gupta v. Union of India (1981) Supp. SCC 87; Bandhua Mukti Morcha v. Union of)ndia (1984) 3 SCC 161; Vishaka v. State of Rajasthan (1997) 6 SCC 241; Vineet Narain v. Union of India 1998 (1) SCC 226; Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 3 SCC 284; Lakshmi Kant H Pandey v. Union of India (1984) 2 SCC 244; Common Cause DAYARAM v. SUDHIR BATHAM & ORS. 1099