(1) The petitioner is seeking a writ of mandamus to direct the respondents to set aside the order of allotment dated july 9, 1983, made in favour of the fourth respondent v. Kanaka raju of fair price shop no. 83 in block no. 22 of nellore town ; to continue the petitioner as dealer thereof and to issue quotas as usual.
(2) The facts are fairly not in dispute and they lie in a narrow circumference : one vaddi sasidhar was allotted and granted a licence in the year 1980 under the andhra pradesh scheduled commodities (licensing and distribution) order, 1982, for short, "the order" to run fair price shop no. 83 in block no. 22 of nellore town and he has been running the same. The petitioner has been working under him as a clerk. Mr. Sasidhar had surrendered the licence in february 1983. By order dated march 23 1983 the petitioner was granted temporary licence pending allotment to a regular candidate, in the interregnum, the government, in g. O. Rt. No. 714 dated june 16, 1983. Took a policy decision to allot 20% of the fair price shops held by the individuals in each district to the members of the scheduled castes and scheduled tribes, for short, "the dalits". Pursuant thereto, under the impugned order, shop no. 83 was allotted to mr. V kanaka raju (4th respondent) a candidate belonging to the scheduled caste assailing the legality thereof, the above writ petition has been filed.
(3) The petitioner is resisting the allotment made to the fourth respondent, on many manifold contentions of constitutional issues. It is argusd by sri krishna reddy, that the fourth respondent though he is a dalit, belongs to hindu community. The petitioner too is a hindu. The petitioner has a fundamental right to carry on business under article 19 (1) (g) of the constitution. Therefore, no discrimination can bs made between him and the 4th respondent. The petitioner being a running licence - holder, is entitled to the preference over the fourth respondent. The question is whether the government in g. O. Rt. No. 714 is entitled, in preference to the petitioner, to reserve 20% of the shops in each district for allotment to the dalits and the impugned action is discriminatory offending article 14 of the constitution.
(4) The constitution is first and foremost a social document, aiming at ushering an egalitarian social revoulution establishing conditions necessary to secure justice, social, economic and political, liberty and equality of status and opportunity promoting, among its citizens, fraternity assuring them the dignity and the unity and integrity of the nation in a sovereign, socialist, secular indian democratic republic. It is now settled in kesavananda vs. State of kerala' that the preamble of the constitution is a part of the constitution it is the key to open the mind of the founding fathers of the constitution and the edifice of the constitution is built upon the concepts crystallised in the preamble. Art. 14 of the constitution assures equality to every citizen. Article 41 in part iv directs the state that it shall make effective provision within the limits of economic capacity the right to secure work to every citizen. Article 39 (a) directs the state to formulate its policy towards securing to all citizensmen and women equal right to an adequate means of livelihood; art. 39 (b) enjoins that the ownership and control of the material resources of the community are so 'distributed' as best to subserve the common good; art. 39 (c) enjoins that the operation of economic system does not result in the concentration of wealth and the means of production to the common detriment. The word "distributed" in article 39 should be read in the context of the common good to bs served to all it5 citizens. It includes by use or the manner of use of the resources of the community. Article 38 (2) directs the state to minimise the inequalities in income and endeavour to eliminate inequalities in status by providing ''facilities and opportunities" amongst individuals but also amongst groups of people residing in different areas engaged in different avocations. Article 38 (1) envisages to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of national life. Article 46 charges the state that it shall promote with "special care" the educational and economic interests of the weaker sections of the people and "in particular", of the scheduled castes and the scheduled tribes, and shall protect them from social injustice and all forms of exploitation. Justice mathew, in his "democracy,. Equality and freedom", at page 47 states that the welfare state exists not only to enable the people to eke out their livelihood but also to make it possible for them to lead a good life. In an article, "economic equality under the constitutionintrospection", published in 1984 - ii, a l. T. Page 1, while considering the provisions of the constitution, i have stated that the welfare state is one which provides necessary conditions for the development of the body, mind and spirit of its citizens. It does not neglect any aspects of human activity and welfare state is a state where there is prosperity, equality, freedom and social justice to all.
(5) In the thrust and in implementation of the directive contained in article 46 of the constitution, the government of the andhra pradesh issued the g. O. Referred to hereinbefore, to reserve and allot 20% of the fair price shops in each district to the dallts to bring about economic rejuvenation to dalits. In mohan kumaramangalam memorial lecture, justice chinnappa reddy has elaborated to synthasise harmoneously the concept of justice in fact envisaged in the directive principles in part iv and the formal justice envisaged in part iii thus :
"liberty. That is, freedom, and justice, that is equality, are the (wo great visions seen and sought by all dreams since the dawn of history. The thirst for money and power and passion for liberty and equality appear to have been the dominating motives of mankind constitutions combine powers and visions, power for the rulers and vision for the ruled; so, liberty and the equality become two of the basic themes of all modern democratic constitutions but steadily, the theme of equality has become the centre around which the wheel of modern history revolves, and more and more it is being realised by political philosophers that there is only one solution to the problem of liberty. And it lies in equality."
Prof. R. H tawney, in his "equality" at page 268 states:
"a society is free in so far, and only in so far, as, with the limits set by nature, knowledge and resr urces, its institutions and policies are such as to enable all its members grow to their full stature, to do their duty as they see it, and since liberty should not be too austers to have their filling, when they feel it. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilitation but on the presence of the abilities."
It is an historical fact that social sanction of untouchability saddled the dalits with segregation from the main stream for millennium, culturally nudes intellectually depraved and economically deprived, denuding thereby of the civility and pursuits of common knowledge. Obviously realising these stark facts, article 46 enjoins the state to compensate them with special care by rendering social and economic justice. The purpose of compensatory treatment is not to remedy the yesterday's discrimination but to serve today's social needs. True compensation can only be the provision of remedies for the present results of the past deprivation and such provision is not directly geared to the amount of past deprivation but rather to the amount of present need. The need is created by past experience of discrimination suffered by a race but the compensatory treatment it directed at the present need based upon one's own membership in a historically disadvantaged group.
(6) In proposed toddy tappers co - op. Society, nizamabad vs. The commissioner of excise, 1 had an occasion to consider the fundamental rights arid the directive principles in the context of formation of society by the backward class (toddy tappers) , and in that context, it was held thus :
"the fundamental rights in part iii are not an end in themselves but are the means to the end. The end is specified in part iv. The promise held forth by the preamble is to usher in an egalitarian society through the discipline of fundamental rights. The attempt, therefore, of the courts in interpreting the provisions of the constitution would be in a liberal way to expand the reach and ambit of the fundamental right so as to subserve the purpose for which the constitution makers intended for".
In that context it was held that the right to form an association, viz. , cooperative society, is a fundamental right to the backward class (toddy tappers) to carry on the pursuit or avocation of tapping toddy to achieve economic justice. The right to economic justice to the poor, down trodden, under - privileged and marginal farmers, is the means to attain the constitutional goal of equality of opportunity. It was further held that equality of opportunity to the under - privileged without advantageous state aid can only mean aggravation of inequality. Therefore, to make the equality of status and opportunity which is the faith and creed of our socialist, secular, democratic indian republic a fruition, the executive has taken action in the field of auctioning their privilege to vend the intoxicant (toddy) the property of the community. As an avenue to the class of poor weaker sections of the society viz. , toddy, tappers whose avocation is tapping the toddy to eke out their livelihood, to form toddy tappers co - operative society and to grant them licence and to allot them the toddy trees so that they could not only avoid exploitation of them by profit motivated middlemen and contractors but also pool their limited resources and man power to seeure economic justice, of status in the society with dignity of person. This decision was carried on in appeal, in w. A. No. 1110/85 and another. Before the division bench, the correctness of the above view was not canvassed, but argued on different points which were not argued before me and the bench by judgment dated november 22, 1985, remitted the matter to another learned judge to decide on those new points raised before the bench. Thus the constitutional position set out above remained unassailed though the case on facts was decided on different points. Thus it must be held that the dalits have fundamental right to justice, social, economic and political; equality of opportunity and of status. Equality of opportunity comprises the legal equality as well as equality in fact. Fundamental right to equality under article 14 is a means to the end specified in article 46 of the constitution. Article 14 encompasses within its ambit all the legitimate constitutional measures of preferential treatment meted out to the dalits and other weaker sections of the society in their upward mobility. Therefore, the preferential treatment to the unequals to make them equals in neither derogatory to nor negation of equality under art. 14 but is an aspect of equality to achieve justice or to eliminate injustice. With a view to efface social iniustice to the dalits, state shall provide them. "facilities and opportunities" to promote their educational and economic interests. The reservation of 20% of the fair price shoos in each district is one such facility and opportunity within the meaning of article 45.
(7) The question then is whether reservation of 20% of the fair price shops to the dalits is dircriminatory. It is no doubt true that the dalits are part of the hindu society governed by the hindu law except the tribes to a specified extent excluded by the specific legislations. Schedule vi of the constitution and the orders issued thereunder, from the time to time.
(8) Prof. J. N. Nickel, in his preferential policies in hiring and admissions' while propounding the doctrine of distributive justice to ameliorating) and reconstructing the social conditions to the blacks in america stated that the doctrine focusses mainly on the need to promote and redistribution of; income and other important benefits and to reduce the inequalities created by the existing distributive system. Those who have been disadvantaged by the existing distributional system should be given more benefits by altering the ways of distribution.
(9) Prof. N. Glazer in his individual rights and group rights, at page 11, has stated that it is the function of the state to reduce poverty and inequalities in the society. The distributive justice accomplishes the idea of proportional equality which says that justice is proportionately rewarded to groups on the basis of proportionality and that all groups should be represented at all levels of income and achievements in proportion to their members in the country's popoulation.
(10) Parmanand singh, lecturer in delhi university law college, in bakka vs. Thomas elaborated the utility of the doctrine of distribute justice in the context of reasonable classification and stated thus :
"the preferential policies may be justified on the ground of com pensating the disadvantaged groups for the past discrimination sufferd by them. The compensation argument requires counter balancing benefits provided to those individuals who have been wrongfully injured to bring them upto the level of wealth and welfare that they would have bad if they had not been disadvantaged. The compernory justice is concerned not only with the elimination of existing inequalities but also compensating the inequals for injustices and discriminations. The beneficiary group will be given more benefits today than would be fair if their yesterday's losses are not taken into account. The compensatory justice argument carries with it the connotation of remedial action to right a wrong already committed."
At page 58, he further stated :
"the preferential policy whether for backward groups in india or racial minorities in america, can be justified respectively by compensatory redistributive and utilitarian arguments whether one takes compensation as goal of preferential schemes or one views such schemes as creating more equitable distribution of benefits and burdens or promoting public welfare, the ultimate goal of all such schemes is to redress the rooted inequalities caused by discriminatory social structure. The claims based on either distributive justice or compensatory justice, both rest on the assertion of past injustices. Once the duty of the society represented through the state to correct society's inbuilt discrimination against certain sections of the society is conceded, the legal and theoritical problems based upon compensatory distributive and utilitarion approach will hardly be apparent in evaluating a governmental classification favouring a disadvantaged group."
In regents of the university of california vs. Allen bakka it was laid down that under the concept of equality of justice demands that the content will be poured into the equality clause, from time to time, in response to the de facto demands and rising aspirations of the society.
(11) The constitution itself for the purpose of application of the claims of the dalits and implementation of distributive justice, treated them as a separate class by expressly defining them under article 366 (24) and 366 (25) scheduled castes and scheduled tribes respectively though they form an integral part of the hindu society. To start with, articles 341 and 342 subject to law made by parliament including or excluding from the list, the president is empowered to specify the castes and tribes. Articles 14, 15, l6. 29, etc. Give a right to equality to all citizens including the dalits. In addition, articles 15 (4) and 16 (4) assure dalits with special right to admission in educational institutions maintained by the state or receiving state aid, or appointments to an office or post under the state as core of distributive justice ; article 46 laid special emphasis to promote the educational and economic interests with special care, of the weaker sections of the people and in particular, the dalits and mandates that the state shall protect them from special injustice and all forma of exploitation. Article 335 given special rights to the dalits in the matter of appointment or employment to the state and article 340 gives right to the president to appoint a commission to investigate from time to time into the difficulties under which the dalits and backward class do labour and to lay before parliament to redress the same. Special right to representation of them in the parliament under article 330 and the state legislatures under art. 332 also are provided. Thus, the constitution itself has laid down the dichotomy between the general members belonging to the hindu community and th; dalits for the purpose of conferment and enjoying the rights assured to them under the relevant provisions of the constitution. In the matter of employment under the state, in state of kerala vs. N. M. Thomas a leading land - mark decision in the constitutional history, their lordships of the supreme court, ray, c. J. , krishna iyer, mathew and fazal ali, jj. Held that the dalits though they form an integral part of the hindu society, is a separate class as such among the hindu community and such a classification is a reasonable classification.
(12) A general right to equality would be a hallow doctrine without policy of discrimination in favoar of disadvantaged class of citizens. Compensatory discrimination constitutes a complete and inevitable commitment by the people and for the people and charged their government and the state (of course including courts) to be realistic to these constitutional goals while assuaging sic. Assuring equal rights and equal opportunities to all sections of the society. In devadasan vs. Union of india, subba rao,j. (as he then was) in his dissenting judgment, while pointing out the necessity for preferential claims has given an apt illustration thus :
"two horses are set down to run a raceone is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given an equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to complete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the constitution introduced clause (4) in article 16".
This dissenting judgment received approval by the majority in thomas case (supra). It is common knowledge that under - developed countries are claiming preferential treatment in the matter of grant of loans or charging interest etc. By the developed countries under various international trade agreements. Raj kumar gupta, in his "justice" : unequal but inseparate" has stated that true equality can be achieved only if the state maintains an integrated society but adopts unequal beneficial measures to help those previously disadvantaged. Therefore, in an unequivocal but a separate society, equality can be achieved only when the disadvantaged has a meaningful equal opportunity to realise rewards equal to the advantaged, if he expends the same amount of energy and diligence. The balance between the rights of the majority and the claims of the under - privileged is necessary in the constitutional schemes to bring them into the main stream of the society. In that context the directive under article 46 is the "guiding force" and article 340 is a part or machinery to implement the right to equality and preference to the under - privileged citizens. Therefore, preferential treatment is compatible with the general constitutional guarantee of equal opportunity. The object, of classification of dalits is to undo social injustice done to them and to secure justicesocial, economic and political within the frame work of the constitution. Therefore there is nexus between the object and the classification and the classification is accordingly not obnoxious to equality. Reservation of 20% to the dalits on that account is perfectly legal and there is no invidious discrimination in that regard violating the equality of opportunity under article 14 of the constitution.
(13) Sri krishna reddy, learned counsel for the petitioner further contended that article 14 of the constitution provides equality of opportunity to all the sections of the society and making 20% reservation to the dalits is arbitrary and therefore it is violative of article 14. Harold laski in his "liberty in modern state", 1948 edition, states that: "the more equal are the social rights of the citizens, the more likely they are to be able to utilize their freedom in realms wortny of exploration. " article 14 provides equality to all its citizens. As seen, article 46 enjoins the state to promote with special care the educational and economic intererests of the dalits and other weaker sections ol the society, to protect them from social injustice, and all forms of exploitation. Article 38 (2) directs the state to reduce the inequalities of status by providing facilities and opportunities and reduce the inequalities of income among the people. The dalits are economically at the lowest ebb of the society. In ramanna vs. I. A. Authority, bhagwati, j. (as he then was) speaking for their lordships, held that:
"today the government, in a welfare state is the regulator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights, etc. The government pours forth wealth, money, benefits, services, contracts quotas and licences. The valuables dispensed by government take many forms, but they all share one characteristic. They are steading taking the place of traditional forms of wealth. These valuables which derive from relationships to government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of state and local welfare."
The same view was reiterated in m/s. Kasturilal vs. State of jandk. In ram and shy am co. Vs. State of haryana, desai, j. Has held that the state in the use and disposal of its property has to deal with it in the public interest. The welfare state should. Use its property for the beneficial larger interests of the state subject to one important limitation that the socialist property may be disposed of at a lower price than the market price or for a token price to achieve some defined. Constitutionally recognised public purpose one such being to achieve the goals set out in part iv of the constitution. Thus, it must be held thar the granting of licence to run the fair price shop is a largesse belonging to the state. Though it is in the form of a privilege it is in the form of wealth; the dalits being socially handicapped and economically depressed, unless the state extends its aid by way of distributive justice, by allotment of its largesse at a prescribed percentage, they cannot compete with the general members of the public in the economic filed either in running the trade or business.
(14) In the article, "economic equality under the constitution instrospection", published in 1984 - i a. L. T. Page 1 (journal) i have said that the constitution arouses expectation in them (scheduled castes, scheduled tribes and backward class) equality, socially and economically for the development of their personality as an individual. It is but the duty of the state to make the right to equality meaningful to them provide all the necessary impetus and inputs. One of the urgent steps in this regard in that regard is that while distributing the largesse by the government, a special provision should be made reserving at least 25% in granting licences, privileges, etc. To the scheduled castes and scheduled tribes and suitable percentage to socially and educationally backward classes in proportion to their population apart from allotting 25% of the budgetary provisions to make special provision for the economic advancement of scheduled castes and scheduled tribes. Thereby the constitutional goals would be made a reality and the right to equality would be meaningful and fruitful,
(15) In mc culloch vs. Maryland marshall, c. J. Laid that :
"let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
Permanent court of international justice in minoriti schools in albanta held thus:
"equality in law precludes discrimination of any kind ; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium betwe;n different situations."
This statement of law received acceptance in st. Xavires vs. State of gujarat in "equal opportunity and compensatory discrimination: constitutional policy and judicial control" parmanand singh, lecturer, law college in delhi university has drawn the distinction between legal equality and equality in fact thus; while legal equality requires the absence of any discrimination in the words of law, equality in fact requires a differential treatment in order to attain a result which establishes an equilibrium between different situations. Equality in fact, thus essentially implies the notion of end - equality or equality in result. It involves an 'equilibrium creating' or 'equilibrium oriented' compensatory discrimination. The compensatory discrimination notion takes into account the inequalities of social, economic and educational background of the people and seeks the elimination of the existing inequalities by positive measures. The measures which are compensatory in character are designed to promote an effective equality by giving more equal opportunity to the disadvantaged. Therefore it would in no way violate the equality principle. In fact, the preferential treatment includes to make them equals as an aspect of justice. The dalits for historical reasons, for decades were socially oppressed, economically condemned to lead the life of penury and educationally coerced to learn the family trade or occupation or bonded labour. The doetri - naire insistence of absolute equality would in fact aggravates the perpetration of their inequality in status, rendering them to have no dignity of person. To make the omniscient doctrine of equality meaningful to the dalits and other weaker sectionsand to protect them from social injustice and all forms of exploitation within the meaning of article 46 of the constitution, the state has envisaged a scheme to provide reservation of 20% of the fair price shops for allotment to the dalit to put some of them in the field of trade so as to make themeconomically self sufficient and gradually assinailate them in the mainstream of the society. In thomas case (supra) ray, cj. At page 519 while considering the inter - relation of the formal equality under article 16 (1) and equality in fact under article 16 (4) of served thus:
"i agree that article 16 (4) is capable of being interpreted as an exception to article 16 (1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of the scheduled castes and scheduled tribes. If equality of opportunity guaranteed under article 16 (1) means effective material equality, then art. 16 (4) is not an exception to article 16 (1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz. , even up to the point of making reservation."
Dr. B. R. Ambedkar, in drafting the constitution, added a proviso to article 8 (2) of the draft (article 13 (2)) thus :
"provided that nothing in this clause shall prevent the state from making law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law."
Though this clause was not accepted by the constituent assembly, but this gives a clue when suitable provisions were made by way of article 16 (4) subsequently amended art. 15 (4) , article. 46, article 335, etc. In thomas case (7) , krishna iyer, j, had held thus.
"social engineeringwhich is law in action - must adopt new strategies to liquidate encrusted group injustices or surrender society to traumatic tensions. Equilibrium, in human terms, emerges from release of the handicapped and the primitive from persistent social disadvantage, by determined creative and canny legal manoeuvres of the state, not by hortative declaration of arid equality. To discriminate positively in favour of the wenk may some times be promotion of genuing equality before the law". In k. C. Vasanth kumar vs. State of karnataka, chinnappa reddy. J; has held that they (scheduled. Castes and scheduled tribes) claim their constitutional right to equality of status and of opportunity and economic and social justice. Several bridges have to be erected, so that they may cross the rubicon. Professional education and employment under the state are thought to be two such bridges. "
(16) Parmanand singh, in his "equal opportunity and compensatory discrimination : constitutional policy and judecal control" (supra) has stated that;
"the idea of equality should, therefore, respond to ths changing social values. In a society of uneqial structure, like ours, strict application of formal or absolute equality will ultimately lead to inequa. Lity. And if by equality is meant a kind of equal showing in everything, then man can never see this occur. Absolute equality is therefore, necessarily "a chimera", nay, a false premise or promise. As there are many levels of differences among persons, a complete identity of equality is impossible. "
(17) In minerva mills vs. Union of lndia baghwati, j. (as he then was) in his dissenting judgment, has handed down that in furtherance of the constitutional goal of social and economic justice, it may conflict with a formalistic doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimensions because the equality clause in the constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilises the concept of social and economic justice, it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle. If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a directive principle with a view to promoting social and economic justice, it would be difficult to say that such law violates the principle of egalitarianism and is not in accord with the principle of equality before the law as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude. This statement of law received general approval by recent constitution bench in sanjeev coke mfg, co. Vs. Mis. Bharat coking coal ltd. In this case. While considering article 39 (b) , chinnappa reddy, j. Held that : when article 39 (b) refers to material resources of the community it does not refer only to resources owned by the community as a whole but it refers also to resources owned by individual members of the community. Resources of the community do not mean public resources only but include private resources as well. Nor do w3 understand the word "distribute" to be used in article 39 (b) in the limited sense in which shri sen wants us to say it is used, that is, in the sense only of retail distribution to individuals. It is used in a wider sense so as to take in all manner and method of distribution such as distribution between regions, distribution between industries, distribution between. Classes and distribution between public, private and joint sectors. The distribution envisaged by article 39 (b) necessarily takes within its stride the transformation of wealth from private - ownership into public ownership and is not confined to that which is already public - owned. Of course, this consideration was in the context of directive principles vis - a - vis fundamental rights, but none - the - less the same principle will apply to the facts in this case, in state of tamil nadu vs. L. Abu kakur bal, another constitution bench speaking through fazal ali, j. Also has given extended meaning to article 39 (b) in the context of fundamental rights. Even majority in minerva mills case (supra) it was held that fundamental rights and directive principles are to be harmoneously allowed to have their interplay. Therefore, i have no hesitation to hold that to make right to equality meaningful, yet another bridge is built by the state in the economic field and granted reservations in according licences at 20% to fair price shops to the dalits. As seen, it is intended as a thrust in the forward march to make the dalits economically self - suffieient.
(18) The question is whether this preferential treatment is arbitrary, violating article 14 ?
(19) In maneka gandhi vs. Union of india bhagwati, j. (as he then was) held that to pass the test of article 14, the impugned action must be reasonable. In other words, it is not arbitrary. It must be just and fair. Reasonableness, in other words, absence of arbitrariness is the core creed of article 14. Equality necessarily excludes arbitrary action. Discrimination is inherent in arbitrary action. In determining what lines are discriminatory, we can never confine in abstract notions of equalitv. What constitutes equal treatment for purposes of equal protection clause, do change with march of time adjusting to the need of the society. , the indian society is steeped in unequal status. Majority people are poor below poverty line. Among them dalits as a class are at the bottom. Article 38 (2) enjoins the state to strive to minimise the inequalities in income and endeavour to eliminate inequalities in status and article 46 charges the state to promote with special care and in particular of dalits the "economic interest' to undo social injustice. What is the meaning of the word "economic interests" is the question. When we consider the reasonableness of a scheme proposed by the state to implement the directives in article 46, court has necessarily to reflect on insight into; unequal past and pitiable plight of the dalits of today with keener sense of compassion and humanity and foresee the social balance the scheme envisages to bring about. The dalits need special treatment. It is implicit in the word "in particular" in article 46, when the need is acute there is greater urgency to undo the injustice, to set right the imbalance in the social and economic inequalities. Article 46 schemes are part of article 39 (b) and (c) and article 15 (4) and article 16 (4). In sanjeeva coke mfg,co. Case, it was held thus :
"no one suggests that the nature of directive principles enumerated in other articles of part iv of the constitution is so drastic or different from the directive principles in clause (b) or (c) of article 39 that the extention of constituional immunity to laws made to further those principles would offend the basic structure of the constitution. ''
The district as a unit is taken under the impugned g. O. And out of the fair price shops in the entire district, 20% of them are sought to be allotted to the dalits. In the light of the above discussion and the constitutional goal of rendering economic justice to the dalits, allotment of 20% of the shops to the dalits cannot be said to be arbitrary. Therefore, the contention of the petitioner that the allotment of 20% is violative of art 14 cannot be sustained.
(20) It is further contended that the petitioner has a fundamental right under article 19 (1) (g) and the g. O. Is an executive action; therefore, without appropriate legislation, the state has no right by executive action to abridge his rights to carry on the trade; and thereby the order allotting the shop to the 4th respondent depriving the petitioner of his right to carry on the trade offends his fundamental right under article 19 (1) (g). It is to remember that the petitioner has no absolute right to trade, his rights springs into being only on grant of a licence under the order or any law operating in the field to run a fair price shop to distribute the scheduled commodities. Granting licence is a largesse and it can operate either in the field of executive action or by a legislation. After the grant, how. He works out his right is governed by the order. No doubt, if it were a case where the petitioner has an absolute fundamental right to carry on trade without state intervention, certainly. The state cannot interdict and abridge his right except by way of a legislation and such legislation must meet the test of reasonableness engrafted under article 19 (6) of the constitution. It is now well settled that even without any legislation, executive can take action by exercise of its executive power. It is not necessary that there should be a law operating in the field. Therefore, it is not necessary that there should be a pre - existing law operating in the field. Admittedly the government have got power to grant licence to refuse to grant licence for specified reasons under the order. While granting such a licence, in implementation of the constitutional mandate under article 46, the state ear - marked 20% of the shops in the district for allotment to the dalits. Admittedly the petitioner was granted only a temporary licence pending grant of licence ob regular basis. Therefore his right is only coaterminous with the allotment of the shop to a licensee on regular basis. It is fortuitous that the petitioner was working as a clerk under the previous licenseemr. Vaddi sridhar and as an adhoc arrangement for the continuous supply of essential commodities to the card - holders of shop no. 83 in block no. 22 of neilore town, the petitioner was permitted to continue to run the shop on temporary basis. Therefore, he did not acquire any indefeasible right to hold the licence. Accordingly, he cannot complain that his right to trade under art. 19 (1) (g) has been infringed.
(21) It is further contended that both the dalits and the general candidates are entitled to be considered alike for the vacancies that have fallen due. The direction to fill up 20% of the reserved shops by the dalits in the resultant vacancies amounts to carryforward to endless period depriving the general aspirants and so it is an unreasonable restriction. I am unable to accept this contention too. The scheme is introduced for the first time, it is not possible to fill up at a time all the 20% shops with dalits taking away the licences from the existing holders. Obviously for that reason, direction has been given to fill up the resultant vacancies with dalits till 20% quota is filled up. In implementation thereof, the allotment of the shops that may fall vacant, could be ear - marked exclusively to the members belonging to dalits till 20% of the shops in the district are completed. Once licence has been granted, the holder thereof is entitled to continue the licence till the period for which the licence is granted expired or till the licence is duly cancelled according to law. Only in case where either the licence period expired or is surrendered, or the licence is duly cancelled according to law, then only vacancies arise. If the ear - marking is not adhered to, then 20% reservation would be only a teasing illusion and the allotment can never be put to implementation. Therefore, there is no substance in this contention too.
(22) The writ petition is accordingly dismissed, but in the circumstances, without costs. Advocate's fee rs. 150/ -
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