Dr.Rajeev Dhawan, one of the counsel for the petitioners, replied to the arguments of the respondents' counsel on Oct.31 and Nov.1. This is a selective summary of his oral arguments.
1. The claim of the respondents that the impugned Act expands capability is a farce. No part of the Act is severable. It is impossible to increase capacity (of the intake of the higher educational institutions) in a proper sense in a reasonable manner.
2. The SG says castes are also professional in character. But the criteria of backwardness is much more complex. It involves the principle of inclusion and exclusion. The excluded include rich as well as the poor.
3. Limitations of judicial review: Main arguments of the other side centre around the doctrine of judicial deference – an area where judicial hands must be off. (Justice Pasayat sought to correct him saying the SG did not exactly mean that the judicial review is inapplicable in the present case – Dhawan agreed to reformulate it as judicial deference).
4. The non-obstante clause in Art.15(4) has a limited application. (It shuts out Article 15(1) and 29(2). Article 14 remains. (Justice Thakker pointed out it is an enabling clause.) Level of scrutiny in Constitution varies from Article to Article.
5. What is not in dispute? : Constitution is a social document; There is social justice in Fundamental Rights; the issue of balance (which is partly disputed by Ram Jethmalani), that is, social justice and group rights cannot overwhelm individual rights.
6. Is power under A.15(4) coupled with duty? The concept of power coupled with duty has been rejected in Ajit Singh II and III cases. (Justice Thakker here pointed out that even in absence of A.15(4), (5) and Article 16(4), SG and Mr.Parasaran had pointed out that it is part of Preamble.) Article 15(3) may be justified in the case of women; but here the State’s contribution is deficient. Ajit Singh III is a forgotten decision.
7. There is no obligation to remove historical wrongs. Constitution does not say you must right historical wrongs. It says help the disadvantaged. Reservation is not a penance for past discrimination. It is not retributive justice.
8. Ram Jethmalani’s emphasis on “only” in Article 15(1) and (2) is an over-simplification.
9. There has been an attack on the American doctrines, especially strict scrutiny, from the other side. Agreed that they are not relevant, not binding. But the level of scrutiny is written into the Constitution. Foreign doctrines are illustrative of an idea. Let the Court lay it down. Level of scrutiny is so detailed here.
10. The impugned Act is a farce. Its purpose is to achieve quick results at the expense of education. Is it a reasonable exercise? Is it a correct method to achieve that objective? There is an implicit balance between Article 14 and 15. Scrutiny relevant to this case.
11. If caste is used as a starting point, there has to be a comprehensive look. Until you do a proper survey, rational, balanced and proportionate affirmative action is not possible. Can this process be short-changed? Census is considered divisive. Then information be placed before the Supreme court. The SG says there may be potholes in the criteria. (Justice Raveendran said they say there is a road in existence) Potholes affect rich and the poor. (Justice Pasayat asked is it a walkable road? Pitfalls, not potholes). Government has not placed a proper and comprehensive criteria of backwardness. Court should ask Government to establish criteria for backwardness.
(The rejoinders of Harish Salve and K.K.Venugopal will be posted later)