(In an upcoming series of guest posts, Karan Lahiri argues that, properly interpreted, Article 16 of the Constitution not only permits, but actually casts an affirmative duty upon the State to ensure the adequate representation of backward classes of citizens in public employment.)

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As this blog already contains an excellent analysis on the topic of reservation, in the ten-part series titled “Reservation, Equality and the Constitution” (in which I would particularly encourage the reader to look at Parts III, IV, V and VII), I think I can skip any preliminaries on the contours of Article 16, and jump right to the question at hand – Does Article 16 of the Constitution of India confer on the State a power coupled with a duty to ensure that backward classes of citizens are adequately represented in public services? Further, is there a similar power coupled with a duty to provide for reservations in matters of promotion for those belonging to Scheduled Castes and Scheduled Tribes which are not adequately represented in the public services under the State?

In “Reservations, Equality and the Constitution – VI: The Middle Way”, it was correctly mentioned that, in Ajit Singh (II), the Supreme Court of India concluded that “Arts. 16(4) and 16(4A) are enabling provisions, and do not confer fundamental rights” and, further, that “the Court also rejected the argument that these Articles conferred a power coupled with a duty, overruling the cases of Jagannathan and Kuldeep Singh.”

What I will attempt to argue, in a series of posts, is outlined below: –

1. I will first explain the concept of “power coupled with duty” (which has its roots in English administrative law principles).
2. Based on a set of cases pending before the Supreme Court at the moment, I will attempt to explain why answering the questions posed in the first paragraph in the affirmative leads to the most just and equitable solution, in keeping with the principle of equality as it exists in the Constitution of India.
3. Finally, I will demonstrate why Ajit Singh (II) is incorrectly decided, and how it conflated the issue of “power coupled with duty” with the issue of whether there is a fundamental right to reservation. In this part, I will also try to demonstrate that reading Article 16 as containing a power coupled with a duty is not only the most just and equitable solution to the interpretive issue at hand, but is also the most consistent with the other strands of precedent that exist regarding the interpretation of Article 16.

(At this point, it is important to clarify that I am NOT arguing that the State has a positive duty to specifically provide for reservations. The scheme that of Article 16, in respect of where the State’s duty ends and its discretion begins, will be set out in subsequent posts.)

Degrees of Discretion – Understanding the concept of “power coupled with duty”

 To understand the interpretive question posed in the first paragraph of this post, we must look at the scheme of Article 16 once again: –

“16. Equality of opportunity in matters of public employment.—

(1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

…

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

….”

Both Article 16(4) and 16(4A) are framed as – Nothing in this article shall prevent the State from making any provision for [X], if in the opinion of the State, [Y] exists. This is, of course, a broad approximation, made only to simplify the language of the provision for the purpose of interpretation. The interpretive issue is whether the framing of these provisions, which appear to be enabling or permissive, can ever be read as conferring not merely a discretionary power but a concomitant duty on the State. In this first part, I will not be looking at the interpretation of Article 16 itself. Instead, I will try to explain the concept of “power coupled with duty”, and explain how this hybridity is often located in provisions containing permissive language, like the language contained in Article 16(4) and (4A).

One of the best expositions on the subject of discretion is contained in “De Smith’s Judicial Review”. On the subject of discretionary power, De Smith states: –

“The concept of discretion in its legal context implies power to make a choice between alternative courses of action or inaction. If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. To say that somebody has a discretion presupposes that there is no unique legal answer to a problem. There may, however, be a number of answers that are wrong in law. And even in cases where the power is discretionary, circumstances can exist which mean the discretion can only be exercised in one way. There are degrees of discretion, varying the scope for manoeuvre afforded to the decision maker.” [Emphasis supplied]

 What flows from this is that even though discretion may be conferred on a State authority, the law may limit the choices that may be made in the exercise of that discretion.

However, when a provision is couched in permissive language, can it be read in a manner that imposes a duty? More specifically, can permissive language, at the very least, suggest that while various courses of action are open to a particular State authority to remedy a particular problem, the State authority can never ignore the problem itself and refrain from at least applying itself to the problem and exercising its discretion? The position in English law, which we have adopted, is summarized in De Smith’s Judicial Review as under: –

“Sometimes, the question before a court is whether words which apparently confer a discretion (words such as “may”, or “it shall be lawful if”) are instead to be interpreted as imposing a duty. The word “may” has over the years, primarily been construed as permissive, not imperative. However, exceptionally, it was construed as imposing a duty to act, and even a duty to act in one particular manner.”

Interestingly, one of the authorities cited in De Smith’s treatise is Julius v. Bishop of Oxford, (1880) 5 App. Cas. 214, which the Supreme Court of India has repeatedly relied on for the proposition that permissive language may often imply a duty to act. The most famous of these, perhaps, is Ambica Quarry Works v. State of Gujarat, (1987) SCC 213, where Justice Sabyasachi Mukharji observed: –

“Often when a public authority is vested with power, the expression “may” has been construed as “shall” because power if the conditions for the exercise are fulfilled is coupled with duty… “May” is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. As early as 1880 the Privy Council in Julius v. Lord Bishop of Oxford explained the position. Earl Cairns, Lord Chancellor speaking for the judicial committee observed dealing with the expression “it shall be lawful” that these words confer a faculty or power and they do not of themselves do more than confer a faculty or power. But the Lord Chancellor explained there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty must depend upon the facts and circumstances of each case and must be so decided by the courts in each case. Lord Blackburn observed in the said decision that enabling words were always compulsory where the words were to effectuate a legal right.” [Emphasis supplied]

A lesser known, yet interesting, examination of “power coupled with duty” is contained in Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85, commonly referred to as the Privy Purses case. In this case, the subject matter of challenge was a Presidential Order withdrawing recognition to Rulers of Princely States. One of the questions that arose is whether Article 366(22) of the Constitution, which invested the President with the power to recognize Rulers, also contained within it a power to withdraw such recognition. It was argued by the Petitioner that the President’s power was coupled with a duty to maintain the constitutionally recognized institution of “Rulership” and, therefore, there could be no power to arbitrarily withdraw recognition and extinguish a constitutionally recognized concept. Justice J.C. Shah’s majority judgment, in upholding this contention, explained the concept of “power coupled with duty” as follows: –

“117. There are many analogous provisions in the Constitution which confer upon the President a power coupled with a duty. We may refer to two such provisions. The President has under Articles 341 and 342 to specify Scheduled Castes and Scheduled Tribes and he has done so. Specification so made carries for the members of the Scheduled Castes and Scheduled Tribes certain special benefits e.g. reservation of seats in the House of the People, and in the State Legislative Assemblies by Articles 330 and 332, and of the numerous provisions made in Schedules V and VI. It may be noticed that Scheduled Castes and Scheduled Tribes are specially defined for the purposes of the Constitution by Articles 366(24) and 366(25). If power to declare certain classes of citizens as belonging to Scheduled Castes and Scheduled Tribes includes power to withdraw declaration without substituting a fresh declaration, the President will be destroying the constitutional scheme. The power to specify may carry with it the power to withdraw specification, but it is coupled with a duty to specify in a manner which makes the constitutional provisions operative.” [Emphasis supplied]

Justice Hegde drew a similar analogy: –

 “… In my opinion Article 366(22) imposes a duty on the President and for that purpose has conferred on him certain powers. In other words the power conferred on the President under that provision is one coupled with duty. There are similar powers conferred on the President under the Constitution. Under Chapter XVI of the Constitution certain special provisions were made for the benefit of the Scheduled Castes and certain Scheduled Tribes. Seats were reserved for them both in the Parliament as well as in the State Assemblies. Certain other benefits were also secured to them in the matter of appointments to services and posts in connection with the affairs of the Union or of a State. But the Constitution did not specify which castes were Scheduled Castes and which Tribes were Scheduled Tribes. Under Articles 341(1) and 342(1) of the Constitution, the President was given power to specify the castes which he considered to be Scheduled Castes and the Tribes which he considered to be Scheduled Tribes. Though both the Articles say the President “may” specify the castes which he considers as Scheduled and Tribes which he considers Scheduled, it is clear that a constitutional duty was imposed on him to specify which castes were Scheduled Castes and which tribes were Scheduled Tribes for the purpose of the Constitution. The word “may” in those clauses must be read as “must” because if he had failed or declined to specify the castes and tribes, Articles 330, 332, 334, 335, 338 and 340 would have become inoperative and the constitutional guarantees given to the Scheduled Castes and Scheduled Tribes would have become meaningless.” [Emphasis supplied]

The reason I favour this explanation of “power coupled with duty” is not because of its explanation of the legal principle itself. Indeed, the interpretive concept is explained better in Ambica Quarry, and also in State v. I.K. Nangia, (1980) 1 SCC 258. However, the Privy Purses case appeals to me because it crystallizes the principle that, in a constitutional context, constitutional provisions which, at first blush, appear to confer discretion, ought to be read as conferring a power coupled with a duty, when the authorities failure or refusal to act would nullify a portion of the constitutional scheme, however small that portion might be. This is wider than the iteration of this concept in Ambica Quarry, which only speaks of a duty being implied if a legal right is to be effectuated.

Let’s call this principle, apparent in the Privy Purses case, the rule of constitutional consistency — a constitutional provision conferring power/discretion on a State authority, couched in permissive language, is to be treated as a provision containing a power coupled with a duty, if the failure or conscious omission on the part of such authority to act would nullify the effect of another/other constitutional provision, or render nugatory a constitutional principle emerging from a mosaic of constitutional provisions.

In the next essay, I will substantiate this argument in the specific context of Article 16. By discussing a set of pending writ presently petitions before the Supreme Court, I will show that there is an asymmetry problem in the way that Article 16 as it is currently read, such that there is a hurdle for ameliorative measures to be put in place, but there is nothing to stop the State from entirely ignoring the under-representation of backward classes in the State service, or even from reverting them to lower posts for no better reason than political expediency.

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(Karan Lahiri is an advocate practicing at the Supreme Court.)