Wednesday, October 31, 2007

Mandal II hearing: arguments of Ram Jethmalani

It was amazing to find how Ram Jethmalani relied on just a two-page judgment delivered by a Seven-Judge Bench in 1951 to show that the petitioners in this case have no merits.

It is a matter of surprise, he said, that the relevance of Supreme Court’s judgment in B.Venkataramana v. the State of Madras (AIR 1951 SC 229) has not been sufficiently understood. The judgment was delivered by a Seven-Judge Bench and it binds the present five-Judge Constitution Bench. In this judgment, the SC set aside that part of the communal G.O. of the then Madras State which dealt with classes other than SCs and Backward Hindus and sustained the validity of that part of the G.O. which reserved posts for Backward Hindus and SCs.

Why did the SC do this?

Since Jethmalani dealt with this judgment at length, I tried to get a copy of this as it is not available on line. (IT IS AVAILABLE HERE, THANKS TO MR.PARAMESHWAR, ONE OF OUR REGULAR READERS) Briefly, the Madras Public Service Commission invited applns. For 83 posts of District Munsiffs to be filled by direct recruitment. Selection of candidates was to be made from various castes, religions, and communities in pursuance of the rules prescribed in what are popularly described as communal G.O.s namely, for Harijans (SCs) 19, Muslims 5, Christians 6, Backward Hindus 10, Non-Brahmin Hindus 32 and Brahmins 11. Different and unequal age limits for candidates of the above mentioned different classes were fixed and no age limit was fixed for Harijans and Backward Hindus.

It was admitted by the Advocate General that the marks secured by the petitioner would entitle him to be selected if the provisions in the communal G.O. were disregarded. He, therefore, prayed for an order declaring that the rule of the communal rotation, in pursuance of which the selection was made was repugnant to the provisions of the Constitution, and thus void.

The Court held that it is impossible to say that classes of people other than Harijans (SCs) and Backward Hindus (as mentioned in the Schedule of BCs set out in Sch.III to Part 1 of the Madras Provincial &Subordinate Service Rules) can be called Backward Classes. The Court held: “As regards the posts reserved for Harijans & Backward Hindus it may be said that the petitioner who does not belong to those two classes is regarded as ineligible for those reserved posts not on the ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens; but the ineligibility of the petitioner for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin.” This ineligibility, the court said, is not sanctioned by Art.16(4). The communal G.O., therefore, was declared void and illegal, as it was repugnant to Art.16. The Court did not consider it necessary to consider the effect of Article 14 or 15 on the case of the respondents.

Using this judgment, Jethmalani argued that advancement of the interests of backward Hindus and the SCs is not discriminatory only on the ground of caste. In other words, if you were competing against backward Hindus and SCs, it is not repugnant to Article 14 and 15. Emphasis on ‘only’ in the body of the judgment was underlined by Jethmalani.

In Balaji v. State of Mysore (AIR 1963 SC 649) the Supreme Court fixed the maximum ceiling of 50 per cent for all kinds of reservations, but Venkataramana did not find a mention in Balaji. This, according to Jethmalani, was surprising. In Balaji, the Court took strenuous objection to the exclusive reliance of Mysore on caste (in the sense of rank or standing) as a criterion of social backwardness and noted that occupations and place of habitation are also relevant. Venkataramana has not been reversed, and therefore, is binding. The simplicity of this rule obviates the long, long arguments on determining what is educational and social backwardness, making them totally redundant. Only argument that survives is: is it a fraud on the Constitution? There is no such pleading. Such a pleading is not possible. Balaji, he said, is a reflection of Nehruvian viewpoint. Slowly, the Ambedkar philosophy prevailed.

Petitioners have cited Jawaharlal Nehru’s letter to the chief ministers on August 14, 1961 wherein he advised the States to follow economic criteria to identify backwardness. He said the State Governments rightly did not follow this advice. Had they done so, all their lists would have become ultra vires in view of the judgment in Indra Sawhney which declared 10 per cent reservation for economically backward as unconstitutional.

Jethmalani pointed out that even Indra Sawhney judgment did not refer to Venkataramana, even though in Indra Sawhney, the Court agreed that the word “only” in Article 16(2) was decisive. Therefore, determination of backward classes and the exact meaning of backwardness are irrelevant. The question to be asked is “Is it only caste?”,

He described the petitioners’ attempt to reverse the Indra Sawhney judgment by this five Judge Bench as impertinent. Certainty of laws must be preserved, he said. In the Bengal Immunity case, Chief Justice Das, laying down the doctrine of finality, has said we should not lightly dissent from previous view. Merely because previous case was wrongly decided is no ground to reverse it.


ravi srinivas said...

If so can one argue that Champakam Durairajan Vs. State of Madras is not reversed and hence binding. The first amendment was brought as a response to this judgment. This case pertained to reservation in higher education. The case cited by Jethmalani pertained to reservation in employment. So can one argue that Champakam is still
binding in reservations in education.
I am not able to understand the
implications of the case of cited by Jethmalani for the present case.

I read in ET about his comments on
Nehru and Ambedkar. Ambedkar quit
because the Hindu Code Bill could not be passed. Of course he had
other reasons to feel unhappy at
that time. Anyway one can expect more histronics from Jethmalani.

Dilip said...

Dear Mr. Srinivas,

It is interesting that you mention that. In Mr. Venkatesan's previous update of this hearing, Rajeev Dhawan cited precisely that: Champakam has still not been overruled and is still good law.

Jethmalani's argument is interesting to say the least and I commend Mr. Venkatesan for posting it here. I suppose Venkataramana came after the First Amendment which would make it different from Champakam.

V.Venkatesan said...

The first amendment, among other things, inserted Article 15(4). This was in response to Champakam as well as Venkataramana judgments. Both came prior to the amendment. However, the Government was then not completely unhappy about Venkataramana, as it had upheld the SC/OBC reservations, and only held as unconstitutional the quota for minorities under 16(4).
It is true that Rajeev Dhawan argued that Champakam is still a good law. I may have to look at his written submissions, to understand how he made this point. In my view Champakam stood modified after 15(4) was inserted.

In Venkataramana the issue was Govt. employment. But the word 'only' is used in both Article 15 (1) and (2) and 16 (2). That is why Venkataramana appears to be relevant in the ongoing case.

Dorji Namgyal said...

Jethmalani's submissions are "amazing". The SG's submissions are "robust".

Its clear where you stand on this one, Mr.Venkatesan.

Anyway, allow me to clear the air on Mr.Jethmalani's selective amnesia and on your misplaced adulation of him.

1.Indra Sawhney did in fact refer to this very judgment. At Paragraphs 169, 455, 695 and 756.

2.A certain lawyer made the VERY SAME dramatic submission before the Indra Sawhney bench - that a judgment was delivered on the same day as Champakam - that its not been followed - that we should all be shocked by such judicial oversight. And guess who that lawyer was. Ram Jethmalani. See Paragraph 697 to see what Jeevan Reddy says about this.

3.Venkataramana is 7 Judges on Article 16. Indra Sawhney is 9 Judges on Article 16. Even if they are both relevant to Article 15, who cares about the smaller bench?

4.No need, Mr.Venkatesan, to scratch your wizened dome over Champakam. It is an irrefutable fact that Champakam is good law. You still cannot have a reservation ONLY on the ground of caste. The insertion of Art.15(4) specifically not mentioning CASTE but mentioning CLASSES was so that the State would have a way out of Art.29(2).

5.As you rightly record Mr.J's question - "Is it only caste?" Hmmm. Tough one. Considering the NCBC List contains over 2000 CASTES. Ooops. Sorry. Backward Classes. Which just happen to be Castes. Every single one of them.

Mr.Venkatesan, what happened to reporting Mr.Rao and Dr.Dhavan's Rejoinders yesterday. And Mr.Salve and Mr.Venugopal today? No time? Or do we have some agendas here?

V.Venkatesan said...

Dear Mr.Namgyal,
Thanks for your provocative reply. 1. Thanks for pointing out that IS judgment refers to Venkataramana. I did not have the time to cross-check Jethmalani's claim.
2. Thanks also for clarifying Champakam.
3. It so happened that your comment and my post on P.P.Rao coincided. No agendas, only time constraints. I noted your objection to my description of arguments of resps. counsel. I believe blogs are different from the dull reporting you usually see in newspapers. Neutral reporting is dull, and which is what we read in mainstream media. The reporters in the mainstream media also have their opinions and convictions, but they suppress it to write neutral reports. I don't want to do that, as I believe blogs give you the freedom which one misses elsewhere.

I understand you missed my earlier posts on Dr.Rajeev Dhawan, and other counsel representing petitioners. It is good to have certain beliefs and convictions, and express them. But I am careful not to let them influence the way I report things. I may describe the event using certain adjectives. But these adjectives need not be construed to indicate my final stand on the issue.