TyroCity: Constitutional Law - I Notes

Right to Equality – Constitutionality of Reservation Policy

Constitutional Law - I Notes — Sun, 08 Apr 2012 05:41:42 +0000

Some say that reservation is a part of affirmative action whereas others say that it is not.. The proviso to Article 13(3) of the Interim Constitution gives state "special powers" for affirmative action. However, there is no mention of the word 'reservation' in this proviso or the rest of Article 13 guaranteeing the right to equality. However, Article 35(10) of the Interim Constitution authorizes reservation as a state policy. It states:

The State shall pursue a policy of uplifting the economically and socially backward indigenous peoples, Madhesi, Dalit, marginalized communities, and workers and farmers living below the poverty line, by making a provision of reservation in education, health, housing, food sovereignty and employment, for a certain period of time.
This provision apparently means that the state is empowered to pursue 'reservation policy' in Nepal in the framework of protective discrimination under Article 13. This provision of Article 35(10) has five important components:

It is the state which has the responsibility to initiate a policy of reservation.
The people who could be offered reservations are indigenous peoples, Madhesi, Dalit, and marginalized communities who are economically and socially backward.
Reservations could also be ensured for workers and farmers living below the poverty line.
The sectors chosen for reservations are education, health, housing, food sovereignty and employment.
As a policy, reservation is meant only for a certain period of time. It is not a policy for indefinite period.

Apart from the above state policy, Article 21 of the Interim Constitution has very clearly guaranteed the fundamental right of proportional inclusion. It states:

Article 21. Right to Social Justice: The economically, socially or educationally backward women, Dalits, indigenous peoples, Madhesi communities, oppressed classes, poor farmers and labors shall have the right to take part in the structures of the State on the basis of the principle of 'proportional inclusion.

Although the contours of Article 21 are yet to be interpreted by the Supreme Court, it is clear that it provides further background for reservation policy to enable participation in state structures (civil, military, judicial, educational, etc).

The constitutionality of any reservation policy must therefore be judged on the merit of a given policy. The objective of reservation may be spelt out variously. The aim of any civilized society should be to secure dignity to every individual. There cannot be dignity without equality of status and opportunity. The absence of equal opportunities in any walk of social life is denial of equal status and equal participation in the affairs of the society and, therefore, of its equal membership. The dignity of the individual is denied and direct proportion to his deprivation of the equal access to social means. The democratic foundations are missing when equal opportunity to grow, govern and give one's best to the society is denied to a sizable section of the society. The deprivations of the opportunities may be direct or indirect as when the wherewithal to avail of them are denied. Nevertheless, the consequences are as potent.

As the US Supreme Court has stated in different celebrated cases like Oliver Brown et al v. Board of Education of Topeka et al, the reservation or affirmative action may be undertaken to remove the "persisting or present and continuing effects of past discrimination;" to lift the "limitation on access to equal opportunities," to grant "opportunity for full participation in the 'governance of the society" to recognize the discharge of special obligations towards the disadvantaged and discriminated social groups to overcome substantial chronic under representation of a social group, or to serve the substantial chronic under representation of a social group; or to serve the important governmental objectives.

Reservation in India is the process of setting aside a certain percentage of seats (vacancies) in government institutions for members of backward and under-represented communities (defined primarily by caste and tribe). Reservation is a form of quota-based affirmative action. Reservation is governed by constitutional laws, statutory laws, and local rules and regulations. Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) are the primary beneficiaries of the reservation policies under the Constitution – with the object of ensuring a "level" playing field. It is a well settled principle in India that reservation to backward class is not a constitutional mandate. It is the prerogative of the state if it so desires, with a object of providing opportunity of advancement in the society to certain backward classes which includes the Scheduled Castes to reserve certain seats in educational institution under Article 15(3) and in public services of the state under Article 16(4) of the Indian Constitution.

Apart from the Scheduled Castes and the Scheduled Tribes to whom the special provisions, once notified by the President under Articles 341 and 342, undoubtedly, apply the other "backward classes" of citizens to whom the special provisions can be extended are not merely backward but are socially and educationally so backward as to be compatible to the Scheduled Castes and the Scheduled Tribes. Poverty by itself is not the test of backwardness, for if it were so, most people in this country would be in a position to claim reservation. But the Constitution envisages reservation for those persons who are backward because of identified prior victimization and the consequential poverty.
The reservation system has received a mixed response from Indians since its inception. It has been praised for diminishing the gap between the upper and lower castes by allowing the latter to enjoy the further increased opportunities as the former in jobs, education and governance by allotting seats exclusively for them. It has also been criticized for discouraging a merit-based system and encouraging vote bank politics.

Right to Equality – Doctrine of Reasonable Classification

Constitutional Law - I Notes — Sun, 08 Apr 2012 05:41:42 +0000

Article 13 guarantees equal protection of law but it does not mean that all laws must be general in character. It also doesn't mean that the same laws should apply to all persons. The varying needs of different classes of persons often require separate treatment. From the very nature of society, there should be different laws in different places, meeting different requirements in the best interest of the safety and security of the state. In fact, identical treatment in unequal circumstances would amount to inequality. So a reasonable classification is not only permitted but is necessary if society is to progress.

Thus what the right to equality forbids is class-legislation but it does not forbid reasonable classification. The classification, however, must not be “arbitrary, artificial or evasive” but must be based on some real and substantial bearing a just and reasonable relation to the object sought to be achieved by the legislation. Article 13 applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently, Article 13 does not apply. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted that between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.

Test of Reasonable Classification
While Article 13 forbids class legislation it does not forbid reasonable classification of persons, objects, and transactions by the parliament for the purpose of achieving specific ends. But classification must not be “arbitrary, artificial or evasive.” It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. According to the Indian Supreme Court, classification to be reasonable must fulfil the following two conditions:

Saurabh Chaudhari v Union Of India (2004)
Firstly the classification must be founded on the intelligible differentia which distinguishes persons or thing that are grouped together from others left out of the group.

Secondly the differentia must have a rational relation to the object sought to be achieved by the act.

The differentia which is the basis of the classification and the object of the act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the act which makes the classification. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory. Thus the legislature may fix the age at which persons shall be deemed competent to contract between themselves but no one will claim that competency. No contract can be made to depend upon the stature or colour of the hair. Such a classification will be arbitrary.

The true meaning and scope of the right to equality [Article 14 in India] have been explained in a number of cases by the Indian Supreme Court. The propositions laid down in Ram Krishna Dalmia v. Tendolkar (1958) case still hold good governing a valid classification and are as follows.

A law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by itself.
There is always presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles.
The presumption may be rebutted in certain cases by showing that on the fact of the statue, there is no classification and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
It must be assumed that Legislature correctly understands and appreciates the need of its own people that its law are directed to problem made manifest by experience and that its discrimination are based on adequate grounds.
In order to sustain the presumption of constitutionality the court may take into consideration maters of common knowledge, matters of report, the history of the times and may assume every state of facts which can be conceived existing at the time of the legislation.
Thus the legislation is free to recognize degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest.
While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent always that there must be some undisclosed and unknown reason for subjecting certain individuals or corporation to be hostile or discriminating legislation
The classification may be made on different bases e.g. geographical or according to object or occupation or the like.
The classification made by the legislature need not be scientifically perfect or logically complete. Mathematical nicety and perfect equality are not required. Equality before the law does not require mathematical equality of all persons in all circumstances. Equal treatment does not mean identical treatment. Similarly not identity of treatment is enough.
There can be discrimination both in the substantive as well as the procedural law. Article 14 applies to both.If the classification satisfies the test laid down in the above propositions, the law will be declared constitutional. The question whether a classification is reasonable and proper and not must however, be judged more on commonsense than on legal subtitles.

Right to Equality

Constitutional Law - I Notes — Sun, 08 Apr 2012 05:41:42 +0000

Under Right to Equality, we have the following titles:

4.1 Right to Equality
4.2 Article 13-‘Affirmative Action’ and Doctrine of Reasonable Classification’
4.3 Rule against ‘Arbitrariness’
4.4 Right to “Proportional Inclusion” and Constitutionality of Reservation Policy
4.5 Special Provisions for Women
4.6 Rights of Indigenous People

4.1 Right to Equality

All citizens shall be equal before the law. No person shall be denied the equal protection of the laws.
There shall be no discrimination against any citizen in the application of general laws on grounds of religion, race, gender, caste, tribe, origin, language or ideological conviction or any of these.
The State shall not discriminate among citizens on grounds of religion, race, caste, tribe, gender, origin, language or ideological conviction or any of these. Provided that nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or advancement of women, Dalits, indigenous ethnic tribes [Adivasi Janajati], Madhesi or farmers, labourers or those who belong to a class which is economically, socially or culturally backward, or children, the aged, disabled or those who are physically or mentally incapacitated.
There shall be no discrimination with regard to remuneration and social security between men and women for the same work.

The Interim Constitution, unlike the 1990 Constitution, also deals with the rights of women, and the right against untouchability and racial discrimination separately. The commentary below is based on the 'right to equality' under the 1990 Constitution.

Commentary
The fundamental right in Article 11(1) combine the English doctrine of the rule of law with the "equal protection clause" of the Fourteenth Amendment of the US Constitution. Thus they guarantee both to right to be "equal before the law" (equality before the law) and the right to "equal protection of the laws."
In Benjamin Peter v. Home Ministry [ref. 33 NKP 749 (2048)], the Supreme Court ruled that the provision of Article 11 of the 1990 Constitution which deals with the right to equality is a provision of general nature, meant for all round application, and the provision regarding the certificate of citizenship as expressed in Part 2 of the Constitution is of a special nature, and meant for the situations specified therein. Thus, the argument that this special provision does not tally with the general provision is not a reasonable argument: if the government enters into an agreement contrary to the special provision of the Constitution, the agreement will not be enforceable. Thus, the two limbs of the right to equality - equality before the law and equal protection of the laws - must be understood in the context of citizens and not foreigners.

In Balkrishna v. Parliament Secretariat, [ref. 35 NKP (450- 2050); see also Keshav v. Minister for Gen Administration, 35NKP 299(2o50)] Section 4(1)(3) of the Labor Act 1991 was challenged as being unconstitutional. The impugned provision stated that the manager of every enterprise shall give a letter of appointment to an applicant, whichever is the case, before putting him to work according to a classified category, and shall give preference to Nepalese citizens in doing so. So far as the first portion of the provision was concerned, the Court ruled that it regulates matters of appointment and that the state had the power to regulate appointments. The second sentence, on the other hand, enabled the undertaking permanently to appoint a foreign national and the Court ruled that this was unconstitutional, [ref. ibid. at 465] reiteration that the right to equality and equal protection of laws is a right that belongs to citizens of Nepal. The demand for necessary manpower to run industries in Nepal must be fulfilled by Nepalese citizens themselves, and so a constitutional freedom granted to Nepalese citizens (a freedom to work to secure livelihood on the basis of due returns) was violated by section 4(1) of the Labor Act 1991 through a provision which caused those citizens to compete with non-citizens for appointment in Nepalese enterprises: there can be no condition or equal protection of laws between unequal because the Constitution itself has reasonably distinguished between citizens and non-citizens. Article 26(6), which requires the state to pursue a state policy of increasing the participation of the lab our force, the chief socioeconomic force of the country, in the management of enterprises by gradually securing employment opportunities to it, ensuring the right to work, and thus protecting its rights and interests was also violated and although the directive principles and policies are not enforceable in court, they provide valuable assistance with interpretation of the provision of the Constitution. The formulation of a law in this way on the pretext of industrial station policy, therefore, contravened the very constitutional system as there is no doubt that the right to contest for appointment subject to the required conditions or qualifications is a right guaranteed to all Nepalese citizens. [ref. inid. at 462-64 (paras 13-14)]

Additionally, the impugned provision would have necessitated a non- citizen who was permanently appointed to employment being granted permanent residential status which would have betrayed the very purpose and foundation of the Constitution, and would be contrary to the interests of the people. The Supreme Court ruled, therefore, that the provision was not only contrary to the legal traditions and judicial principles but also to the directive principles and state policies prescribed in the Constitution. [ref. ibid. at 464-65 (para. 15)]

In another leading case decided in 1994, the Supreme Court was also concerned with the right of non-citizens to equal treatment but this time in a different context. In the case of Mira Gurung [ref. Mira Gurung v. Central Immigration Department, Thamel, 36 NKP 68 (2051)] the main issue was whether it is reasonable under Article 11 of the Constitution to reject the granting of a residential visa to the alien husband of a native wife under Rule 14 of the Alien Rules 1975, when the law affords a foreign wife of a native husband the right to a visa. The court ruled that any person applying for a visa is a foreigner to Nepal and that therefore the law governing the relationship between an applicant for a visa and the authority responsible for considering that application Prima facie does not involve questions of discrimination under Article 11. The impugned clauses of Rule 14, however (clauses 3 and 4) provided for visa arrangements not relating only to alien subjects but also to nationals of the country on the basis of marital relationships with Nepalese citizens. Under these clauses it is not a person's status as an alien which is important, but the fact of marriage to a Nepalese citizen, and so the ability to apply is linked to that relationship. Since the Rule in question allowed the authorities to refuse a visa to the husband of a Nepalese wife where it would have been granted to the wife of a Nepalese husband (and not limited in time), [ref. ibid.at 73-76 (para. 14)] the Supreme Court ruled that the provisions in question led to unequal treatment and discriminatory practices on the grounds of sex against Nepalese wives with foreign husbands as compared to Nepalese husbands with foreign wives, and that they were therefore in contravention of the right to equality.

Equal before the law; equal protection of the laws: Article 11(1) protects both a citizen's right to be "equal before the law" as well as the right of a person to "equal protection of the laws", and the two rights are quite different. The first phrase is of particular, rather than general, application and acknowledges that no citizen shall be accorded special privileges, and that none shall be above law. It appears that the word "law" in this expression is used in a generic sense, a philosophical sense. Equality before law therefore means that all person or classes of persons are equally subject to the ordinary laws of the land and that no one can claim any privilege (though exceptions in favor of foreign diplomatic missions and legations, the jurisdictional immunity of the king, the special protection accorded to certain officers and judges, and privileges to certain associations and interests, such as trade unions, have been recognized under the Constitution). The first phrase is thus a negative concept, for it implies absence of any privilege in favor of any particular individuals. [ref. Arun Kumar Rai v. Cabinet secretariat, Writ No. 166/2048 (unpublished)]
The second phrase, however, is of general application and requires that "equal treatment of the laws" must be guaranteed to all persons, natural and legal, Nepalese and foreign.

Although general in application, the word "laws" in the phrase "equal treatment of the laws" denotes specific laws in force and means that the same laws should be applied alike without any discrimination in all situations. [ref. ibid.] Thus this clause is positive in operation, assuring equality of treatment to all in equal circumstances, and is, to some extent, a corollary of the first clause: it would be a contradiction to say that any violation of equal protection of laws would not result in violation of equality before the law. [ref. Hari Prasad Sharma v. Cabinet Secretriat 37 NKP 665 (2052)] The second phrase, however, also has an extended meaning so as to protect those who are in reality not equal. It is now generally accepted that there are no universal laws of universal application, and that social circumstances and facts are not universally the same. Thus, of equality is to be real the unequal have to be made equals.

Although Article 11(1) is couched in absolute language, it is settled that protective discrimination or a doctrine of classification is inherent in it. Put another way, the right to legislate must imply the right to classification is inherent in it. Put another way, the right to legislate must imply the right to classify for the purposes of legislation. [Brandeis, J., dissenting, in Quader City Cab Co. v. Pennsylyanid, 277 US 389, 405 (1928)] In this connection Abraham Lincoln observed:

The authors [of the Bill of Rights] intended to include all men but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color size, intellect, moral development, or capacity. They define with tolerable distinctness in what respects they did consider all men created equal- equal with "certain inalienable rights, among which are life, liberty, and the pursuit of happiness". This they said, and this they meant. They did not mean to assert the obvious untruth that all were actually equal enjoying that equality, or yet that they were about to confer it immediately upon them. In fact, they had no power to counter that such a boon. They meant simply to declare the right, so that enforcement of it might follow as fast as circumstances should permit. [ref. The Collected Works of Abraham Lincoln, Vol. II, at 450; (1953)]
The importance of Article 11(1) is that citizens are entitled to be treated as if they are equal on all matters important to them, and matters really importance to them are matters that are common to all men. Article 11(1) therefore relies on moral judgments to the effect that equality is good, and that it ought in some cases to exist, and that this is so in spite of the obvious ways in which men are unequal in strength, talent and intellect. The claim that men are equal is a claim that in fundamental respects, regardless of obvious differences, all men deserve to be given certain kinds of treatment. They have a right of certain kinds of equal treatment in crucial aspects of their lives, thought not in all.

In the Iman Singh case [Iman Singh Gurung v. HMG/ Secrtariat of the Council of Ministers, 34 NKP 710 (2049)] the provision of a controversial clause of the Army Act 1959, which imposed military law on a civilian, was considered and declared ultra virus to the Constitution by the Supreme Court. A civilian, Iman Singh Gurung, was sentenced to eight years imprisonment by a military court on a charge of instigating a soldier, Bharat Gurung, to commit an offence under Section 45(b) of the Act. Section 1(3(d) of the Army Act provided that a non-military man may be tried under the Act for, among other things , encouraging soldiers to breach any provision of the Act . The petitioner contended, amongst other things, that his right to be tried as a civilian in an ordinary court which fell within the guarantee to equality had been infringed. The Supreme Court agreed and declared s. 1(3)(d) of the Army Act to be inconsistent with Article 11(1) and, therefore void.

Vindicating the contentions of the petitioner, the court ruled that any act done by an official or agency of the state for the enforcement of law, or any law passed by the legislature, must not accord unequal treatment between citizens, for that offends the guarantee of the right to equality and the spirit of the Preamble which envisages a bond of unity between Nepalese people on the basis of equality. Accordingly, it contravenes the principles of equality to deprive a citizen, or a group or class of citizens, of those rights, privileges and protections that are made available to other citizens or groups or classes of citizens, or to load some with greater liability and responsibility that other. Every citizen has a right along with all other citizens to the protection of his person, life, property and goodwill, and to fight illegal encroachment upon, or injustice against, him, and to have recourse to an ordinary court of justice as established by the law for the enforcement of his rights. [ref. ibid. at 720] The Chief Justice further observed in the Iman Singh case, [ref. Iman Singh Gurung v. HMG/ Secretariat of the Council of Ministers, 34 NKP 710 (2049)] that the right to equality also consists of a right to invade justice as per ordinary procedures from ordinary courts of justice established under ordinary laws of the land. This right is a condition precedent' for the protection and enforcement of other fundamental rights and therefore has its own intrinsic importance. For the enforcement of rights guaranteed under the Constitution or laws, consideration of the case by a competent and independent judicial body is essential. In its absence, rights will have no practical importance. [ref. ibid. at 725 (para. 23)] The Supreme Court also pointed out in the Iman Singh case that Article 88(2)(a) of the Constitution clearly states [ref. Iman Singh Gurung v. HMG/Secretariat of the Council of Ministers, 34 NKP 710 (2049)] that the Supreme Court can interfere with the proceedings and decisions of a Military Court on the ground of absence of jurisdiction or on the ground that a proceeding has been initiated against, or punishment given to, a non-military person for an act other than an offence relating to the army. Offences such as illegal accumulation of foreign exchange, smuggling and corruption (for the purposes of the Prevention or Corruption Act 1960) are offences of a non-military, civil nature. Just because such offences had been committed by members of the military, and because the person concerned was tried and punished under the Army Act, these offences cannot be termed as military offences. [ref. ibid. at 730 (para. 23)] To be termed as a military offence, an offence must be directly related to military organization, and must involve the carrying out of military duties and discipline. [ref. To reach these conclusions, the court also took recourse to the foreign precedents established in Wolfe Tone's case 27 St. Tr. 614 (1798); Wose v. Withers 3 Cranch US 331; 2 led 457; and Callahan v. Parker 395 US 258 (1969)]

The right to equality, and the need for classification, requires special focus with regard to administrative discretion. [ref. Amir v. Ministry of Construction and Transport 29 NKP 114 (2044)] There may be many situations where and Act or statute, instead of making a classification itself, confreres powers on the executive in that regard. In such cases, if the Act confers unregulated discretion on the executive, it would be void under Article 11. If, on the other hand, the Act has laid down some principle or policy for the guidance in the exercise of discretion by the executive in making classification, then it would not be void as offending against Article 11. Thus, in Baburam paudel [ref. Baburam Paudel v. HMG/ Cabinet Secretariat, 36 NKP 143 (2051)] the Supreme Court held that discriminatory use of discretionary power violated Article 11 of the Constitution.

If the legislative policy is clear, and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject matters of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.
Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur, but the validity of law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.

The basic rationale behind Article 11(1), and other clauses that follow is that it strikes at arbitrariness in state action and ensures fairness and equality of treatment. Thus, equality is the antithesis of arbitrariness and where and act is arbitrary, it is implicit in it that it is unequal - both according to political logic and constitutional law - and violates Article 11.

[ref. Iman Singh, 34 NKP 710 (2049)]
Considering this rationale, and upholding the power of His Majesty's Government compulsorily to retire civil servants before reaching retirement age, the Supreme court observed in Baburam paudel, [ref. Baburam Paudel v. HMG/ Cabinet Secretariat, 36 NKP 143 (2051)] that the process followed to reach a decision on such retirement should be just and reasonable and that the court is imbued with the power to check whether this decision of government has been duly made as per the provisions of the Civil Service Act. [ref. ibid] The court refused to see the relationship between HMG and civil servants as a relationship between the government and civil servants and, as such, the rules are as much binding on the government as they are on civil servants. The doctrine of pleasure (or holding office during the pleasure of the government) does not mean that the government can take the civil service law for granted and is immune from applying the procedures laid down: the doctrine of pleasure is not a doctrine of authoritarianism and does not allow the government to ignore applicable statutes and laws. [ref. ibid. at 161 (paras. 46, 47)] Similarly, a decision which is inconsistent with the Constitution and laws cannot be rendered constitutional or lawful b the doctrine of submission. An unconstitutional or unlawful decision is always unconstitutional or unlawful and the court cannot ignore questions of law, constitutionalism, and jurisdiction, but must consider each case on its facts on a case to case basis. [ref. ibid. at 163 (Para. 56); the doctrine of submission as noted in this case is in fact the doctrine of acquiescence as understood as a species of stopple- i.e. a silent appearance of consent and failure to make any objections in such situations where a person's knows or ought to know that he is entitled to enforce his right and neglects to do so for such a length of time as would imply that he is intended to waive or abandon his right. See Yeach v. Stockmar, CA Colo, 482 F. 2d 820, 834]

In Krishna Prasad Lamsal's case, [ref. Krishna Prasad Lamsal v. Cabinet Secretariat, 4 S.Ct.Bull. 2 (Poush 1-15, 2052)] the Supreme Court again ruled that the Constitution has not specified the organization, conduct, and terms and conditions of the service of the Civil Service. All that the Constitution says in its Article 124 is that the government may, in order to run the administration of the country, constitute services as may be required, and that the organization, operation and conditions of service thereof shall be as determined by an Act. Until such an Act has been enacted, the government according to the doctrine of necessity is empowered to conduct the civil service in accordance with the Rules made under the previous Act, which has not yet been challenged. Applying this principle, the Supreme Court declined to declare Ultra virus Rules 7(1) and 7(2) as being in violation of Article 124 of the Constitution. Echoing the earlier decision in the Baburam Poudel case the Court said that whilst the relationship between a civil servant and His Majesty's Government cannot be compared with that of master and servant, the doctrine of pleasure did not entitle the government to insist on compulsory retirement where the decision reached was arbitrary in nature: every action which has a bearing upon the right of a person must vindicated by express legal authority, and the rule of law envisages that every such action is governed by a law which is limited in its ope
In Tirtha Koirala v. HMG, [ref. 4 S.Ct.Bull. 1 (Poush 1-15, 2052)] the Supreme Court also declared ultra vires an amendment to Rule 106(d)(8) of the Civil Service Rules 1993 which gave appellate jurisdiction to the government over a decision of the Supreme Court in relation to disciplinary action against the Registrar of the Supreme Court.

Constitutional Law – I

Constitutional Law - I Notes — Sun, 08 Apr 2012 05:41:42 +0000

Rights and Doctrine

Right to Equality – Affirmative Action

Constitutional Law - I Notes — Sun, 08 Apr 2012 05:41:42 +0000

It is important to link the proviso of Article 13(3) [the power of the state to make special provisions for the protection, empowerment or advancement of some specified groups of people] with the American principle of Affirmative Action. Affirmative action is sometime also called ‘reverse discrimination” or “positive discrimination.” Note Article 35(14) of the Interim Constitution which uses the term “positive discrimination” as an isolated reference for us.

Affirmative action in the US is the consideration of race, gender, or other factors, to benefit an underrepresented group or to address past injustices done to that group. Individuals who belong to the group are preferred over those who do not belong to the group, for example in educational admissions, hiring, promotions, awarding of contracts, and the like. Such action may be used as a "tie-breaker" if all other factors are inconclusive, or may be achieved through quotas, which allot a certain number of benefits to each group.

In the United States, affirmative action refers to equal opportunity employment measures that Federal contractors and subcontractors are legally required to adopt. These measures are intended to prevent discrimination against employees or applicants for employment on the basis of "color, religion, sex, or national origin" During reconstruction in the United States, from 1865 to 1877, following the Civil War, American Congress enacted race-conscious programs primarily to assist newly freed slaves who had personally been denied many advantages earlier in their lives. Such legislation was enacted by many of the same people who framed the Equal Protection Clause of the American Constitution, though that clause did not apply to such federal legislation, and instead only applied to state legislation. Likewise, the Equal Protection Clause does not apply to private universities and other private businesses, which are free to practice affirmative action unless prohibited by federal statute or state law.

Several important affirmative action cases to reach the Supreme Court have concerned government contractors. But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003).
In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. The Grutter v. Bollinger(2003), was a landmark case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. The court ruled that the University of Michigan Law School had a compelling interest in promoting class diversity. It held that a race-conscious admissions process that may favor "underrepresented minority groups," but that also took into account many other factors evaluated on an individual basis for every applicant, did not amount to a quota system that would have been unconstitutional under Regents of the University of California v. Bakke.

Gratz v. Bollinger was another United States Supreme Court case regarding the University of Michigan undergraduate affirmative action admissions policy. In a 6–3 decision announced on June 23, 2003, Chief Justice Rehnquist, writing for the Court, ruled the University's point system's "predetermined point allocations" that awarded 20 points to underrepresented minorities "ensures that the diversity contributions of applicants cannot be individually assessed" and was therefore unconstitutional. In this case, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.

In these affirmative action cases, the American Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter v. Bollinger, and a Harvard College admissions policy praised by Justice Powell's opinion in Regents of the University of California v. Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity.