Thursday, September 13, 2007

LIVE BLOGGING FROM SUPREME COURT ON MANDAL II

Mr.K.K.Venugopal continued his submissions this morning on behalf of the Resident Doctors' Association.
I am summing up his views here:

1. Article 15(5) and Article 15(4) are inconsistent with each other. Article 15(5) bars the application of the provision to minority educational institutions, whereas Article 15(4) has no such exclusion. Before Article 15(5) was inserted last year, reservations were made under Art.15(4). So, the question is does A.15(5) override A.15(4)? The Minority Educational Institutions (MEI) will be free to admit 100 per cent students without yielding even one per cent of SC/ST/SEBCs. THIS WILL BE A SIGNIFICANT DEPARTURE FROM WHAT EXISTED EARLIER.

2.On the issue of inconsistency between Cl.4 and 5 of A.15, three Judges seemed to agree: They are Justices Pasayat, CJI,and C.K.Thakker. Justice Raveendran, however, raised the issue whether two enabling clauses can contradict each other, as Art.15(4) and (5) are enabling clauses. Even if there is conflict, it can be reconciled was his view. Enabling provision does not bar the application of the Article to MEI was his view. Mr.Venugopal replied to him that in the process of making the law, restrictions would come into force.

3.Since the Government would not have passed this Constitution Amendment inserting 15(5) if its intention was not to confine it to non-minority students, it is necessary to strike down the whole law, rather than sever it from this aspect, so that the question of inconsistency can be resolved.

4. Parliament's intention was to include the creamy layer among the beneficiaries. That is why the impugned law is silent on creamy layer. Mr.Venugopal referred to the Parliament debate on the issue, highlighting how the Hindi version of the Bill specifically excluded creamy layer, whereas the English version chose to observe silence, thus including the creamy layer. The Parliamentary Affairs Minister then replied that the English version will prevail. According to Mr.Venugopal, if the law is silent, then the Court cannot say creamy layer ought to be read as excluded from scope of the Bill. Hence, the entire law needs to be struck down.

5. Justice Thakker asked since the paramount intention of the law makers is "advancement" of the backward classes, it goes without saying that the creamy layer ought to be excluded, as the real backward classes would be left out. Justice Pasayat seemed to agree with what he said.

The Hindu's reports are here and here for those interested in reading what was argued before the Bench on September 11 and 12.

1 comment:

Aditya Swarup said...

i really appreciate your putting up the daily arguments of the case.
way to go!!