Contentious issues beyond quotas: The Forests case

For now, debates on OBC quotas are on hold, as we wait for the Supreme Court's next move on May 08. But it is becoming clear that the quota issue is but one among many that are at the heart of the recent institutional struggles between the Judiciary on the one side, and the Executive and the Legislature on the other.

On April 26, Lok Sabha Speaker Somnath Chatterjee addressed the overall issue squarely while delivering a public lecture. Excerpts from that speech are carried in this column in the April 27 issue of the Indian Express. For the most part, the lecture covers fairly conventional analysis, focusing on the roles of the three wings of government, and quite predictably, making the case that the Indian Judiciary should respect the constitutional powers of the Parliament and Executive.

I was drawn to the section where Chatterjee focuses on some recent judicial actions which he considers problematic, though he prefaces that statement by making the reasonable (and necessary) concession that judicial review is of course entirely legitimate. This is refreshing, particularly in view of recent statements by members of other Left parties, which seem to betray a misunderstanding of basic notions of constitutionalism, by asserting that the Indian constitutional regime is one where parliamantary supremacy is the governing rule.

"NO ONE can take exception to any decision in the exercise of judicial review (subject, of course, to the provision of review or appeal, where it lies) invalidating any law or executive action, but where it seeks to lay down some new policy to be adopted or actions to be taken and uses its supposed power to compel executive action on the same without any known authority or procedure, serious questions necessarily arise about the source of such power.

Now-a-days, there are umpteen instances where the judiciary has intervened in matters entirely within the domain of the executive, including policy decisions. Recently, a media correspondent has compiled a list of issues and matters in which the courts have apparently, if not clearly, strayed into executive domain or in matters of policy. He has noted that the orders passed by the hon’ble high court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhiites breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines.

The Jagadambika Pal case of 1998, involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, to my mind, are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers. The interim order of the Supreme Court in these two cases, to my mind, upset the delicate constitutional balance between the judiciary and the legislature. I feel that these were instances of unfortunate intrusion by the Supreme Court into well-demarcated areas of powers of the legislatures, contrary to the provisions of Articles 122 and 212 of the Constitution. Chief Justice Verma has recently described the orders in the UP and Jharkhand cases as judicial aberrations and has expressed his hope that the Supreme Court would soon correct them."

In the subsequent sections, Chatterjee focuses on the principles of constitutionalism which counsel against such aggressive judicial actions. Again, much of this is trite, and this could well be an abstract academic paper discussing principles without referring to any specific country, because Chatterjee seems to ignore the realities and political factors in India which have led over time to the judiciary adopting such an aggressive position. It is only towards the end of the lecture that Chatterjee implicitly recognises this, when he asserts:

"ALMOST all votaries of judicial activism, including the hon’ble judges themselves, while exercising power in such assumed jurisdiction justify it on the supposed failure of the legislature or the executive authorities in taking proper action to mitigate the people’s grievances or to find solutions to people’s problems."

Chatterjee's response is interesting, because it seems to concede the force of this criticism. He does not seek to refute it, but focuses instead on the judiciary's institutional incapacity to address these problems on its own:

"But with regard to dispensation of justice, how many ordinary citizens of the country, who are oppressed and subjected to various forms of discrimination and denial of rights, particularly women who are victims of torture and exploitation, can have access to the courts, specially the highest court of our country? How many dismissed employees, how many victimised teachers, how many senior citizens, how many disadvantaged people staying in far flung areas of the country who would need to seek justice can approach the apex court of our country? The geographical distance, prohibitive cost of litigation, inordinately long time taken for disposal of matters, discourage or otherwise make it impossible for ordinary litigants to approach the court.

The large number of arrears pending in almost all the courts is affecting the people’s faith in our justice-delivery system. These issues require to be given very serious attention not only by the legislature or the executive but also by the judiciary. One has to admit that in many instances the judiciary (without attributing any fault to it) is not able to cater to the needs of the common people of the country in adequate measure. Now, in such a case, can any other organ of the state take up on itself the right to exercise judicial powers on the plea that judiciary has not adequately been able to do so?"

It is interesting to contrast the Speaker's take on the issue with that of Rajeev Dhavan who addressed the same issues in an op-ed piece which appeared in the April 27 issue of the Indian Express). Dhavan's piece, reflecting his academic background as well his current role as a leading Supreme Court lawyer, provides a historical perspective of the tussles between the three wings of government and lays out four broad categories of judicial actions that he terms "areas of discontent." Dhavan concludes that "[w]e are in the midst of a controversy as big and complex as the property and sovereignty controversies of the Nehru and Mrs Gandhi eras. "

While Dhavan's tone and style throughout the piece is academic and objective, there is one issue on which his comments are quite scathing. This is in reference to the Supreme Court's intervention in the Forest cases, and this is what he has to say:

"Can a case concerning forests go on for years — with decision-making shared with an amicus and a Supreme Court created committee that holds hearings with pride and prejudice as if it were a consultative wing of the Supreme Court."

Interestingly, this is strikingly similar to the argument adopted by the Additional Solicitor General in opposing the Supreme Court's continued intervention in the forest cases. More details of the latest order in the Forest case, including the argument of the ASG resisting judicial intervention, can be found in this newsreport from the April 27 issue of the Indian Express.

Even if the OBC quotas issue gets resolved equably (and there don't seem many signs of that as of now, given the strident statements issued by politicians over the past few days), the leaders of the three main institutions of Indian goverment will have to adopt sagacious steps to avoid a constitutional crisis in the coming months.

Update, May 03: The full text of the Speaker's speech is available here.

Mandal II: The propriety of CJI's intervention

The manner CJI has exercised his prerogative in advancing the hearing of the Ashoka Kumar Thakur case to May 8 has dismayed some of our co-bloggers. Now, that the case is to be heard by the same P-P Bench, I am summing up here some of the legal arguments in defence of the CJI. It appears the CJI had no leeway to change the Bench, since Rule Nisi has not yet been issued:

1. Had it been a part-heard matter, the CJI could not have intervened; that is, between March 7, 2007 when it was first heard, and March 28, before it delivered the interim/final order on the stay. Once the order had been delivered, there is no fetter on the CJI's power.

2. Since Court is closing for vacation in May, no request for expediting final hearing could be entertained in April in the normal course. It is not a practical request that could have been made to the Pasayat Bench. Still, the Solicitor General made the oral request for early hearing, which elicited the '56 years' remark from the Bench. If Rule Nisi was issued and Justice Pasayat himself had fixed the matter for hearing on May 8, there would have been no grievance. If Rule Nisi was issued by Justice Pasayat, then it is logical that the matter is fixed for hearing by the CJI. Once Rule Nisi is issued, it becomes the part of the Court's final hearing calendar, and it becomes the responsibility of the CJI to assign Benches. But Rule Nisi has not yet been issued in this case, even though the Centre has challenged the notice to show cause why Rule Nisi should not be issued. Normally, if the Bench thinks the PIL being heard can be expeditiously disposed of, there is no formal need to issue Rule Nisi. In this case, there is a challenge to Constitutional validity of a statute, and there has to be a detailed hearing. There is an element of urgency. But Rule Nisi has not yet been issued.

3. Even when Rule Nisi has not been issued, and the matter is in after-notice stage, the power to fix the matter is with the CJI. If Justice Pasayat had fixed the matter in August on the basis that he has other cases scheduled before vacation, then also CJI could, if satisfied with the urgency, say that this case must take priority over other cases. However, this power is not normally exercised, and is a little awkward exercise of CJI's prerogative. Off late, some Judges have the tendency to fix dates for hearing even beyond after notice stage. Therefore, the CJI is right if he feels that he has the prerogative to fix dates in such cases.

4. Once a case crossed the administration stage, then the CJI has the power to mark it to the appropriate Bench. The Supreme Court Rules are silent on this, and it is a matter of convention that he does not normally do so.

5. In matters of urgency, the Court had advanced the hearing of a case even to summer vacation. In 1974, In Re Presidential Poll, the Supreme Court's Constitution Bench heard the matter during the summer vacation, as the Government sought to get the court's advisory opinion on the validity of Presidential election, before it is held, as the Gujarat Assembly had been dissolved and President's rule imposed. (The Supreme Court held the election would be valid even in the absence of the Gujarat assembly). It is clear, however, that the P-P Bench and the CJI differ on the question of urgency in this case.

6. The Government's strategy on May 8 will again be to seek reference of the case to a Constitution Bench. If the P-P Bench does not agree to it, then perhaps there are very limited options before the Government.

The Mandal II Debate:More Questions than answers

Since there have been quite a few comments on my stand, I thought I could post a fresh piece, than respond to those comments separately.
First, I would like to thank Mr.Vikram Raghavan for the compliment, even though I hardly deserve it. I find, however, that my interpretation of the events which led to the CJI advancing the hearing of the case to May 8 has so far not been seriously disputed, which only shows my co-bloggers share my perspective on this, to some extent.
Secondly, Mr.Vikram wants me to explain how creamy layer criterion for the purpose of 16-4 could be different from that of 15(5). I feel the answer has already been provided by Mr.Pratap Bhanu Mehta. He agrees that the Government’s arguments in favour of not excluding creamy layer for the purpose of 15 (5) are “reasonable”. But he tends to agree with the Pasayat-Panta Bench that it is “inadequate justification”. Now, to my understanding, there is no big gulf between the etymological significance of the words “reasonableness” and “justification”. In other words, what is reasonable, can also be of assistance in justification. The March 29 Order of the P-P Bench does not say Government’s justification is inadequate on creamy layer issue. It simply avoids any mention of the Government’s many arguments, saying they need to be examined at length during the August hearing. It does not even prima facie record any finding that these arguments are inadequate justification. Mr.Mehta believes that the stay was given on the basis of the Bench’s finding that the Govt.’s justification on creamy layer is inadequate. I do not know how he would explain, if he is pointed out that there was no such finding at all. No doubt, it is just a stay. But let the stay be justified on certain grounds.

However, I do agree, as pointed out earlier in the comments section, that the Government could have explained/answered better the criticism that there is inconsistency in its reliance on the OBC lists, adopted for 16(4), for the sake of 15(5),and its reluctance to exclude creamy layer, as mandated by Indra Sawhney.
In principle, I do not have strong views in favour of including creamy layer. In fact, my perspective on this is still evolving. First , I seemed to agree with Justice O.Chinnappa Reddy’s view that since creamy layer in the general category is not excluded from the job b enefits, there is no rationale for excluding creamy layer from the OBCs. I found the Indra Sawhney’s judgment somewhat inconsistent in the sense – they justified exclusion of CL in order to maintain compactness of the OBC group, even though 16(4) was about favouring those classes inadequately represented in the services. Still, I thought one could go along with it, since a subsequent amendment facilitates carry-forward of unfilled vacancies (A.16 [4B] ) since the concern of pro-creamy layer group is about unfilled vacancies due to want of sufficient eligible candidates within the non-creamy layer OBCs. In the case of educational institutions, the situation is different, as there is no carry-forward rule, but the unfilled seats would invariably go the general candidates within the same academic year.
That is why I found the CPI(M) proposal somewhat interesting: first reserve 27 % for the non-creamy layer OBCs, then the unfilled seats within the quota could go to the creamy layer OBCs. Mr. Ravi Srinivas believes the CPI(M) is not sincere, as it plays a different game in TN. May be. But I would like to confine myself to the merits of the proposal, rather than analyse the motives of the proposer. I should, however, add that my views on creamy layer are not still final, and I am amenable to more persuasive arguments.
Other bloggers have expressed other criticisms, of which one needs to be rebutted: I seem to agree with the view that the court is fine, as long as it passes decisions with which Parliament agrees. My answer: It is very rare that Parliament unanimously passes a law, with which the Court is unhappy. Even then, I am not in agreement with the view, I am credited with by my critics. Let the Judiciary do its job of interpreting the law. If the Parliament is unhappy with its decisions, it has remedies, in the form amending the law and the Constitution, as happened in the 1950s, in the matter of land reforms, the very First Amendment being the finest example. Imagine the Nehru Government being criticized for overturning the Champakam Dorairajan verdict in 1951 through the First Amendment which resulted in 15(4). Is not 15(4) now accepted as a reality, and proof of our commitment to compensatory discrimination? Were the Courts unhappy then, or even subsequently? Did not the Courts later take this Parliament’s assertiveness in their stride? Imagine what would have happened, if the Courts had the final say in all those landmark cases? Would it have been possible for our Governments to go ahead with governance and several welfare measures for the people? No doubt, the Government has realized the importance of 15(5) belatedly in 2006, only because T.M.A. Pai and Inamdar decisions did not come earlier from the SC. The critics question the Government’s timing of the Act, and attribute political motives to it. Which Government has no political motives? If all parties support a measure, which party is likely to derive undue political advantage from it? Are political motives inherently unethical in a democracy?

Misconceptions in the OBC Quota Debate - Part I

The recent SC Order refusing to vacate the stay was an interesting order. I can certainly expect a strong political reaction. But I can also see an assertive judiciary. May be we are back to the property rights days. We can certainly expect exciting moments ahead. Reminded of an old Chinese curse – May you live in interesting times!

One might perceive the Supreme Court, as being anti-OBC quota, but that would miss the deeper issue over here. I think the key assumption that is being contested over here is – whether caste is a proxy for backwardness. The government says yes. And the Supreme Court is not inclined to believe that answer, and rightly so, because the data on which reliance is being placed for that answer are state OBC lists which are as old as 40 years for many states.

I agree with Pratab Bhanu Mehta – we should use this SC intervention to rethink about desirability of caste-based reservation and whether these policies are being targeted to the right audience. But increasingly, the debate is being now being focussed on technical legal issues which have acquired significance in light of the SC order. In this post, I deal with two fundamental misconceptions that have played a key role in this debate. (There is some unavoidable repetition from an earlier post of mine in support of the SC order)

Misconception no 1:
The Recent Supreme Court ruling is inconsistent with its prior Nine Judge Bench ruling in Indra Sawhney in 1992

A good section of the political class and the media have strongly asserted the charge of inconsistency against the current Supreme Court ruling. They assert that Supreme Court in Indra Sawhney has already approved reservation for OBC based on data and the Court cannot question its prior ruling now for lack of data. Mr. Venkatesan in his recent post suggests that Parliament in response to the recent set back should define “OBC” to mean “OBC as approved by the Supreme Court in Indra Sawhney”

This represents a gross misunderstanding of the Supreme Court judgment. The SC in Indra Sawhney did approve the OBC reservation in state employment based on state OBC lists (and not on the basis of the Mandal Commission Report), but that observation does not justify reservation OBC reservation in educational institutions 15 years down the line. If that was so, we can have OBC reservation in perpetuity based on a 1992 ruling upholding reservation based on state lists of OBC (which themselves go back several decades)

It is for this reason the Supreme Court in Indra Sawhney said that there should be a periodic revision to the list of OBC’s. (Para 847 in 1992 Supp (3) SCC 217 per Jeeavn Reddy) The Supreme Court said that backwardness being a relative term must be judged by reference to the entire population (para 795) and a “survey must cover the entire populace.” (See Conclusion 3(b) in Para 859 and 785) The Court is not saying that the government must do a house to house survey, but the government must do a sample survey which gives a sense as to how each section of the society is placed in comparison to the other. I would strongly recommend everyone to have a look at Para 857 of Indra Sawhney where Jeevan Reddy outlines various state lists. It shows how old the state lists are. In Bihar, the last survey was done in 1971, in Gujarat it is 1976, in Kerala- 1967, in Maharastra-1964. So in essence a class which has been identified as backward in 1960’s is still getting the benefit even in 2007. This is a complete mockery of the Supreme Court judgment in Indra Sawhney. In fact the government has only been adding to this list. There have been more additions than deletions.

The government knew that it has to conduct such a survey in 1992 when the Indra Sawhney ruling came out. Did it conduct a survey in 1992? It did not. The government had an opportunity to conduct such a survey along with the general census in 2001, but it failed to exercise that valuable option. Did the government do a survey in 2003 which was 10 ten years after the Indra Sawhney? It did not. But suddenly in 2007 the government discovers that it has to give reservation for OBC’s. It is difficult not to see a political motivation for this exercise. In fact the National Commission for Backward Class Commission has been complaining that the government has not been providing infrastructure to conduct a survey.

The government relies on the recommendation from the National Commission of Backward Classes in 2003 which is to the effect that the government need not conduct a fresh survey since reservation for OBC’s is only ten years old. That recommendation is not even worth the paper on which it is written on. In Indra Sawhney, the Supreme Court said that the government in conducting the survey, the government must consult the Commission. (Para 847) It doesn’t mean that government can escape its obligation to conduct by relying on an ill-conceived recommendation of the Backward Classes Commission. And in any case, the recommendation of the Backward Class Commission is not a defense for non-compliance of constitutional obligations. The Court has struck down the Backward Class recommendations many a time. Just two days ago, the Supreme Court rejected the recommendation of the Kerala Backward Classes recommendation on creamy layer. And in 2005, a five judge bench of the AP High Court struck down a unanimously passed state enactment giving 5% Muslim quota on the ground that it was based on ill-conceived and inadequate recommendations of the State Backward Classes Commission.

Misconception no 2:
The Supreme Court in Indra Sawhney Accepted the Mandal Commission recommendations and therefore the government is entitled to place reliance on them

This is a bigger misconception in the entire OBC debate. Even those who are against the OBC quota assume that the Supreme Court has approved the Mandal Commission recommendations. THE SUPREME COURT DID NOT APPROVE THE MANDAL COMMISSION RECOMMENDATIONS. In fact, if one strictly follows the technical rules of precedent, the Supreme Court actually rejected the Mandal Commission recommendations.

This confusion arises because of multiple judgments in Indra Sawhney. Indra Sawhney was a bench of nine judges and out of these nine judges six opinions came out. The opinion that is most often referred to is of Justice Jeevan Reddy who wrote on behalf of Justices Venkatachelliah, Kania, Ahmadi and himself. Justices Sawant, Pandian, Kuldip Singh, Thommen and Sahai delivered individual opinions. Ordinarily when there is large bench, it is conventional to have one opinion that represents the majority for the sake of clarity followed by some concurring or dissenting opinions. (Keshavananda Bharati being a distinguished exception to this convention) Indra Sawhney is also one such exception. In such a scenario, the ratio has to be ascertained by seeing the opinion of each judge on each issue and then add the numbers. It is a settled rule of precedent that an opinion can be in the majority on issue and be in a minority on another issue.

In Indra Sawhney, Justice Jeevan Reddy upheld the controversial Office Memorandum (OM) which provided for 27% reservation in state employment. Two judges – Pandian and Sawant also upheld the OM. Three judges – Singh, Sahai and Thommen – declared the OM as unconstitutional. But what is binding is not the final conclusion, but the reasoning on which it was based. When it came to the issue of Mandal Commission recommendations, the Court was sharply split even among the majority. Their opinion can be outlined below

· Jeevan Reddy (on behalf of four judges) upheld the OM on behalf of the State OBC lists and not on the basis of the Mandal recommendations. Although he did approve the criterion on which Mandal Commission went about identifying backward classes (predominantly caste –Para 854), he expressly made a decision not to get into the adequacy or inadequacy of the Mandal recommendations. In response to the arguments criticizing and defending the Mandal Commission Report, he observed
"it is unnecessary for us to express any opinion on the correctness or adequacy of the exercise done by the Mandal Commission. (If and when the Government of India notifies any caste/ community/group/class from out of the Mandal list, which caste etc. is not included in the appropriate State list, would the said question fall for consideration. It is then that it would be necessary to deal with the criticism against the Mandal Commission). For the same reason, it is unnecessary to refer or deal with the arguments of the counsel for Union of India and the Respondents in justification of the Mandal Commission Report. (Para 856 in SCC)"

So central was this determination to his opinion, he even put this in his list of conclusions at the end of the judgment

(14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. (Para 859 in SCC)

He justified his conclusion on the ground that OM was not based on the Mandal Commission recommendations since the Government of India has not accepted it. (851)

· Justice Pandian was the only judge among the nine judges who expressly approved the Mandal Commission recommendations. (Para 140)

· Justice Sawant was ambivalent on the Mandal recommendations. He said that there was nothing wrong with the criterion adopted by the Commission, but – like Jeevan Reddy – refused to get into the merits and instead sought to rely on the State OBC lists. (Para 551)

· Justices Kuldip Singh, Sahai and Thommen in each of their opinions vigorously attacked the Mandal Commission Report on the criterion adopted and the methodology. Justice Kuldip Singh was very emphatic in his criticism of the Mandal Report

It is, thus, obvious that hardly any investigation was done by the Mandal Commission to find out the backward classes for the purposes of Article 16(4). A collection of so-called backward castes by a clerical-act based on drawing-room investigation cannot be the backward classes envisaged under Article 16(4). If the castes enlisted by Mandal are permitted to avail the benefit of job-reservations, thereby depriving half the country's population of its right under Article 16(1) the result would be nothing but a fraud on the Constitution. (Para 393 (v))

So out of nine judges, 5 judges (Jeevan Reddy + Sawant) expressly refused to express any final opinion on the Mandal Commission recommendations and even left the issue open for a future day. So out of the remaining four judges, three of them rejected the recommendations and only one judge expressly approved them.

Given this, I find it almost perverse to assert that the Supreme Court approved the Mandal recommendations. (If anything one could actually argue that the Supreme Court rejected Mandal recommendations since three out of four judges rejected the recommendation)

What is more disconcerting is the extensive reliance placed by the Central government in its written submissions on the opinion of Justice Pandian in support of its stand. Its not only unfair, but would probably tantamount to misleading the Court.

PS: I will deal with the standard and the extent of judicial review in the affirmative action cases in India in the next blog.

Why No Skimmed Quotas under Article 15?

Since Mr. Venkatesan is such a forensic interpreter of our Court's jurisprudence and the larger political canvass regarding reservations, I would like him to elaborate his assertion that the creamy-layer requirement under Article 16 (4) is to be handled differently under Article 15 (4). I, for one, am unable to comprehend what "peculiar differences" exist between jobs and educational seats that would make the creamy-layer requirement apply to one type of reservations and not to the other. As Pratap Bhanu Mehta says, the government has failed to articulate a proper justification to avoid the creamy layer issue in education.

I must admit I have not read the recent cases on reservations quite carefully as I have wandered away from that field for a few years. Yet, having studied the subject quite intently earlier, I question whether it is appropriate to confine Indira Sawhney's creamy-layer requirement to only public employment. I cannot recall anything in Justice Jeevan Reddy's majority decision for the constitution bench that limited "skimming" the creamy layer to jobs. It is true that the underlying case involved the constitutional validity of the 1990 office memos implementing the Mandal recommendations. But, if I recall correctly, the matter was first placed before a constitution bench of five judges. It was subsequently referred to a nine-judge bench "with a view to finally settle the legal position relating to reservation."

With this mandate, the judges in Indira Sawhney covered a wider canvas of issues than just that the validity of the office memos implementing the Mandal recommendations. In fact, during the hearings, the government's lawyers asked the court not to consider reservation in promotion for SCs and STs on the ground that the issue was not before the Court. The Court rejected that objection and proceeded to overrule Rangachari's Case, which ultimately resulted in a constitutional amendment. Therefore, I am unconvinced by attempts to restrict the scope of Indira Sawhney's holding to Article 16 (4), which I must say, was a fair and balanced decision given the competing constitutional interests at stake.

CJI's Ruling on Early Hearing in Mandal-II -- More Thoughts

I find Mr. Venkatesan's thoughtful and well articulated comment to my post quite persuasive. I am grateful to him for his courteous and professional response, which helps advance the debate substantially. However, I am not convinced that Article 76 (3) of the Constitution entitles the Attorney General to ask one bench of a Court to intervene when another declined to do so. Moreover, even if the Chief Justice was required by the Constitution to hear the Attorney General, it does not mean that the Chief Justice had to concede what the government was asking. I would find it highly irregular if the Chief Justice's ruling was based on such reasoning (and I have found no evidence to suggest that it was).

In any case, I have always found Article 76 (3) to be somewhat of an anachronism to our constitutional and legal scheme. It was one of those superfluous English traditions in the Constitution that our founders, in their wisdom, included largely influenced by the prevailing spirit of their times. I should also point out that the office of the Attorney General is not exactly the same as the Lord Advocate General of England (I recently listened to a presentation on this topic by Lord Goldsmith, the incumbent English Advocate General). Even if the Attorney General were somehow entitled to deference on account of his constitutional office, the idea that he, while appearing for the government in a case, has an automatic "right of audience" before a court that other lawyers representing opposing litigants lack seems, personally to me, to be inconsistent with the constitutional objective of equal access to justice for all parties.

It is certainly true that, as a statutory matter, we now have a class-based system of senior advocates and other advocates under the Advocates Act. But that system, which itself was introduced to create an "integrated bar," does not justify special access to the Court for the Attorney General, as the government's principal lawyer (and by extension, his client, the Central Government) in a pending litigation where the Court had not sought his intervention or advice (as it routinely does in an matter with important constitutional dimensions or in an advisory proceeding).

I am also attaching comments I received from Pratap Bhanu Mehta on this matter.

Dear Vikram and Arun,

Just a quick response to your posts. A lot of what we
make of this will depend upon how the case eventually
proceeds. But I think I disagree with Arun for the
following reason:

Think of the options the CJI has on May 8,
irrespective of which bench it gets referred to

a)vacate the stay on implementation of reservations.
This would amount to overturning the Pasayt Bench's
claim that the government has not answered it fully.
It would certainly amount to the fastest about face a
Court has done. This would be tantamount to a final
verdict (since students are being admitted)

b)not vacate the stay. In which case what has been
gained by "fast tracking" as far as this academic
session goes

In the first case the Court ends up giving credence to
the view that "it all depends on the bench" and will
raise an interesting debate about gerrymandering the
bench. In the second, it simply postpones the issue by
two weeks.

I can see the point of trying to defuse an explosive
situation. But it also raises a dangerous precedent of
governments literally blackmailing the Court into
submission by a)unnecessarily exaggerating the harm to
students (SC and general category students could have
been admitted by now) and b) more importantly, using
the threat of public disorder to make the Court
succumb.

I agree with Arun, that the remark about 57 years was
unnecessary. But the Court was also asking the
government about repeated non-compliance with its
order. Perhaps the Executive could say to the Court,
we have not implemented your orders on the creamy
layer for 17 years, why get exercised now!!!

CJI's Order for Early Hearing in Mandal-II

I write in my personal capacity to say I find it unusual that the learned Chief Justice of India (for whose sagacity and experience I have great respect) intervened in this matter after another bench of the Court expressly declined to do so. The Chief Justice's intervention raises several juridictional and substantive issues, which I hope our blogging community can interrogate. I agree that it is the Chief Justice's prerogative to assign matters among different benches. But once the matter had been assigned to the Pasayat-Panta bench, the Chief Justice ought to deferred to that bench to handle the matter unless there were compelling reasons (which should have been stated) for intervening in the matter. After all, Justice Pasayat (whose judgments I have followed with great interest for many years) is an experienced and sound judge whose integrity has not been questioned. By contradicting the Pasayat-Panta bench, the Chief Justice's ruling could be interpreted (even if it was not intended that way) as having overruled the former's order issued hardly a day earlier.

I understand the predicament of the Attorney General and the Solicitor General who were caught in a bind in a very important case. But the proper course of action would have been for the government to seek a review of the order denying a vacation of the stay (if a review against such an order were permissible under the Supreme Court's rules) rather than appearing to indulge in what could be unfortunately perceived as forum shopping among different benches of our Court. I invite comments on this matter from my other colleagues and our regular readers.

Murdoch Praises the Indian Supreme Court

A vote of confidence in our Supreme Court from an unlikely source.

Stay on Mandal II : A Way Out

With the Supreme Court’s Pasayat-Panta Bench refusing to vacate the stay on the applicability of the CEI(RA)Act to the OBCs this academic year, there is now a dire need to look at possible options for the Government. The Bench’s observation that the nation has waited for 57 years, and it can afford to wait for six more months (till the case is finally heard, although in effect it would mean losing a full year) may be viewed as totally unnecessary and even unjustified, and insensitive to the OBCs, with full of aspirations. The political class is unlikely to accept this refusal, and most likely explore the possible options to overcome this setback. Whatever the merits of the Bench’s decision, (the Bench has not gone into the merits of not staying the Act at all), we have to accept it as given, and look at the alternatives before the Government dispassionately. Letting the OBCs lose a year is certainly not a wise and sensible option.

The interim order (the Bench calls it final order insofar as the move to deprive the OBCs the benefits this academic year) indicated two hurdles before the Act could be approved: the validity of data and the exclusion of creamy layer. In today’s hearing, surprisingly, the Bench appeared to have agreed with the Solicitor General that Indra Sawhney Bench had approved the 27 per cent reservations for the OBCs, and therefore, the question on data for a similar quota for admissions in CEIs does not make sense. But the Bench immediately linked this issue with that of creamy layer exclusion, and asked the SG that the Government has not excluded it, even though Indra Sawhney made it mandatory. It appears to be reasonably clear that it is the creamy layer exclusion that is bothering the Bench, rather than the absence of a fresh survey to identify the OBCs for the purposes of the Act. It is in this context, the Bench observed that the Government wanted to play the game first, and frame the rules (regarding creamy layer) later. But the Bench did not admit that the creamy layer exclusion rules are already available, but the Government had taken a deliberate stand to include creamy layer, in view of the peculiar problems facing the OBC students seeking admission in CEIs. This has been explained at length twice – in the counter affidavits of the Government and in the application to vacate the stay. But the Bench has chosen to ignore the Government’s arguments for the present, rather than give it due consideration.

Now, is there a way out? The Government, it appears, can certainly work on this option, and build all-party consensus, with the next Parliament session beginning on April 26. The power of the legislature to validate matters which have been found by judgments or orders of competent courts and Tribunals to be invalid or illegal is a well-known pattern. The legislature validates acts and things done by which the basis of Judgments or orders of competent courts and Tribunal is changed and the judgments and orders are made ineffective.

The effect of validation is to change the law so as to alter the basis of any judgment, which might have been given on the basis of old law and thus make the judgment ineffective. A formal declaration that the judgment rendered under the old Act is void, is not necessary. If the matter is pending in appeal, the appellate court has to give effect to the altered law and reverse the judgment. The rendering of a judgment ineffective by changing its basis by legislative enactment is not an encroachment on judicial power but a legislation within the competence of the Legislature rendering the basis of the judgment non est. The strategy is to cure the defects in the old law so as to make the new law consistent with Judicial expectations.

Therefore, political parties must use the next session of Parliament to do two things: one, bring an amendment Bill, to delete the references to OBCs in S.6 of the CEI(RA) Act, 2006; second, bring another Bill to reserve 27 per cent seats in CEIs for the OBCs, with a specific provision saying that the creamy layer among the OBCs to get the quota benefit, only if the 27 per cent seats remained unfilled by non-creamy layer among the OBCs – a proposal originally put forward by the CPI(M), but opposed by other parties. Alternatively, the Government can bring a single amendment Bill, to introduce these changes in the existing Act, and ask the CEIs to await the passage of the Amendment Bill, its assent by the President, and the Gazette Notification of the Amendment Act coming into force.

To make it further fool-proof, the new Bill could also make it clear in the definition clause, that the OBCs are “as already determined and approved by the Supreme Court in the Indra Sawhney judgment” and as mentioned in the Central List for the public services, to be considered for purposes of the Bill. The National Commission for Backward Classes could be mandated by the Act to carry out a special sample survey, to be completed within a year, to verify the continuing eligibility of the various castes and communities in the Central OBC list, and to recommend inclusion and exclusion, on the basis of complaints on a transparent basis.

This must take care of the Court’s interim concerns, till it is finally heard in August. The CEIs must be directed to keep the 27 per cent seats open, till the enactment of the new statute, within a fortnight, as the promulgation of ordinance during a Parliament’s session for this purpose may not be proper.

Update: The Chief Justice of India, the reports suggest, has accepted the GOI’s plea for early hearing of the case, and has advanced it from August to May 8. But early hearing alone –whether by this Division Bench or by a Constitution Bench – will not help to satisfy the political class, and withstand the pressures of the academic calendar staring at the face of the OBCs. The Judiciary –whatever the outcome of the case – appears to be concerned more about the form rather than the substance of the compensatory discrimination policy. For the sake of preserving the substance under threat from this case, it may be in the interest of the OBCs, to finetune the form of the policy, and opt for certain face-savers as suggested here, in order to appear to be fair and just, even though the Government and the political class might be convinced about the merits of the substantive policy it is pursuing.

Jaffrelot on Mandal II and Hindu Nationalism

The "Idea Exchange" section of today's Sunday Express has an interview with the academic Christophe Jaffrelot, whose area of specialisation is Hindu nationalism. While the idea of having several journalists interview a single public figure on various issues is commendable, I think the value of this section would be immeasurably increased if the interviewee was allowed to air views more than the questioners. As this particular 'idea exchange' shows, the interviewers seem to say more than the interviewee, which seems to defeat the purpose of the whole exercise. Jaffrelot has many interesting things to say about the current state of Hindu nationalist politics, but given the topical nature of Mandal II, the initial questions focus on his views on Mandal II and his reactions to those questions are as follows:

"This reservation business, I find it very interesting that in a way we are back to the 1960s, when the Supreme Court was objecting to the Backward Commission reports coming from the states. If you remember the famous Karnataka vs Balaji case of 1963, when any caste-based reservation was not made possible by the Supreme Court. The Supreme Court changed its mind in the 1990s and the 1992 case was the most interesting one, when the court said sometimes caste can be a class and it cleared the way for everything and we could have caste-based reservations. And it seems this kind of progressive approach to the issue is not the position of the present Supreme Court. So we are back to a struggle of the judiciary and legislative wings of power. Let’s see whether the judiciary prevails, but if it does, then it means that the whole range of policies based on reservation will be slowed down and frankly speaking I think it’s one of the few corrections to what liberalisation is doing to societies these days. …

One of the things necessary is the redistribution to correct the widening of gaps between the upper classes and the lower classes. Because the grand theory that in India it will percolate and everybody will benefit from it is not happening. Maybe in the long run, but in the long run we will all be dead. … …

Well, so far, all backward classes commissions that have gone to the field have concluded that the most relevant variable to identify social and educational backwardness was caste. If things have changed, let’s have a survey and let’s check if caste is not relevant any more for identifying the lowest plebeians. But you can’t dismiss any policy on the grounds that there is no data because if there is no data you have to rebuild the data and not remain status quoists. And I am afraid caste is one of the major variables still."

It is interesting that Jaffrelot's views, to the extent they resonate with those of Omvedt on the need for a caste-based survey, seem to reflect the tendency of academics to emphasise the importance of formulating policies after carefully evaluating the background empirical data. As the debate over Mandal II wears on, at least part of its contested nature seems attributable to the reason that there is great disagreement about the basic facts at issue.

Update (April 23, 1.13 pm): In the comments section, V. Venkatesan points out that I misinterpret Jaffrelot's statement, and that instead of calling for a new caste-based survey, he was arguing that the government can be faulted for using caste as a basis for new quotas only if caste is perceived as being irrelevant in contemporary India, which is clearly not the case. I think this is a more nuanced reading of Jaffrelot's view, and I stand corrected. I can't help wondering how Jaffrelot would have reacted to a more specific question on the existing data regarding the proportion of OBCs in India. To me, the divergence of numbers projected by the Mandal Commission and the National Sample Survey Organisation (to name two studies on this issue) is problematic. This issue will no doubt form part of the arguments which are currently underway before the Supreme Court, and which will garner considerable attention in the days to come. Regardless of how that case turns out, the collection of solid data on OBCs in India is clearly an issue which needs to be studied closely going forward.

Mandal II: Marc Galanter Revisited

Marc Galanter’s classic, Competing Equalities: Law and the Backward Classes in India was published in 1984, a few years before the Mandal I controversy erupted in 1990. Many years have gone by, and in the context of the debate on Mandal II, one is tempted to know what would have been his scholarly analysis of the recent events. While an interview with him could bring out his insights on the issue, I decided to revisit one of his latest articles for the same. His article, ‘The Long Half-life of Reservations’ appears in the edited volume, India’s Living Constitution: Ideas, Practices and Controversies, (Zoya Hasan et.al, Permanent Black, 2002). Thanks to Mr.Abi, a regular reader of our blog, I am giving the link to this article here.

Galanter starts with a debate on the terminology to describe the policy. To some extent, he justifies his choice of “compensatory discrimination” in place of ‘affirmative action’. He is mildly critical of those who unabashedly borrow the American term, ‘affirmative action’, which began to be used in the early 1980s. He says: “On first encounter, we might dismiss this new terminology as yet another instance of uncritical adoption of American terms and of a wider and unreciprocated receptivity to American law. However, perhaps there is more here. Conveying at least an oblique reference to the American experience, it signals a tendency to regard Indian developments not as intractably unique, but as a complexly particularized instance of fundamental issues about disadvantaged segments of the population in ‘meritocratic’ democracies.” Gallanter refers to the fact that scholars from the U.S. and South Africa consider the Indian experience as a source of lessons that might be relevant in other settings.
The Supreme Court’s interim order of March 29 has been criticized for its uncritical acclaim for certain judgments of the U.S.Supreme Court. Galanter’s view only strengthens that criticism.
That apart, Galanter tries to grapple with the scope of the OBCs in this way:
Is the OBC category meant to include a wide middle band of castes and communities situated ‘above the Scheduled Castes and Scheduled Tribes, and excluding only prominently well-advantaged groups at the top? Was it intended to catch those whose advantages were far below the average, comparable in circumstance to the SCs and STs? Was the backwardness of the OBCs to be relative to the average or to the top? Mandal, he says, opts for the expansive view, and this has now been ratified by the govt. and the SC. (One wonders a further amplification of what he meant could help better understanding).
Gallanter’s understanding of Mandal I is expressed succinctly here: “Mandal employs caste in both senses. It uses castes as the units whose backwardness is going to be measured (along with jati-like formations among non-Hindus) and it proposes to use caste standing as the measuring rod, for determination of the backwardness of social units. The alternative to castes as units is to measure the backwardness of families or occupations or individuals; a substitute to caste as a measuring rod is to base eligibility on such criteria as poverty/ illiteracy. Obviously, he considered these alternatives imperfect.
Having said that, however, Galanter appears sympathetic to the Mandal II petitioners’ ground of attack against the CEI(RA) Act: lack of data. He says: “The appearance of precision in applying the Mandal Commission’s criteria is dissipated by a serious methodological flaw. These caste groups have not been counted in the census since 1931; the extrapolation of community population figures for half a century, on the assumption that all communities experienced equal growth rates, renders suspect many of the Commission’s findings about relative conditions”.
In the Mandal II debate, a question very often asked by the pro-reservation group is that whether the petitioners believe the OBC population in the country to be well below the 27 per cent. The petitioners so far have not answered this question; but Gallanter appears to have one. His articulation of the problem shows that the petitioners might be in fact concerned with the unsubstantiated, yet genuine fears that the scheme can be so designed to allocate seats over and above (italics his) those gained by the beneficiaries in open competition. Mandal clearly opts for the over and above method, rather than the guaranteed minimum (according to this, if a smaller number of beneficiaries are selected in open competition, the results are adjusted to add additional members of the beneficiary group upto the level of reservation.) “Curiously, so far as I know, the permissibility of these over and above reservations has not been the subject of constitutional challenge in recent years, although a generation ago several courts found them objectionable”, he says. He cites Mandal report as saying: “The chief merit of reservation is not that it will introduce egalitarianism amongs OBC when the rest of the Indian society is seized by all sorts of inequalities. But reservation will certainly erode the hold of higher castes on the services and enable OBCs in general to have a sense of participation in running the affairs of their country.”
Gallanter expresses his agreement with Mandal that compensatory discrimination cannot do everything. “Compensatory preference may be a viable policy for breaking barriers and forced draft inclusion of excluded groups;p it cannot secure a chimerical ‘equality of result’ throughout India’s social order.
A serious programme of compensatory preference, he says, must include measures for self-assessment and a design for it to dismantle itself. There can be no dispute with this view, only the timing of dismantling may be debated. His conclusion: “For all its failures in implementation, India’s policy of compensatory discrimination has been remarkable in its scope and generosity. It is time to upgrade its effectiveness while acknowledging the limits of what can be accomplished with it. “

Mandal II : The Likely Arguments

As the Supreme Court's hearing on April 23 of the Government of India's application for vacation of stay on S.6 of the CEI(RA) Act approaches, there is some clarity on the contending arguments likely to be advanced. The Central Government would plead for the reference of the case to a Constitution Bench of 5 Judges, in view of the binding nature of Indra Sawhney, under Art.145(3), as the Court is grappling with a substantial question of law and interpretation of the Constitution. The petitioners are likely to counter this argument saying Indra Sawhney refrained from dealing with the infirmities in the Mandal Commission Report or the States' lists, and therefore, nothing prevented this Division Bench from going ahead with the case. It will be therefore, interesting to see how the Bench resolves these contending issues. The Government will try to satisfy the Bench that its application is not a petition for review. If it is considered a review, then the Bench could dispose it off without hearing arguments.
Secondly, on the question of creamy layer, it appears politicisation clouded the Government's response to some extent. This blog learns that on April 6 at the all-party meeting convened by the Government, the CPI(M) specifically put forward the proposal that the 27 per cent quota for OBCs must be first reserved for the non-creamy layer, and if the seats remained unfilled for want of candidates, the reserved seats could be filled by the creamy layer of the OBCs. The proposal was bold, and it appeared as if the criticism against inclusion of creamy layer could be effectively blunted with this. Unfortunately, it appears, the rest of the political class rejected it without advancing a reasoned argument against it. The Government seemingly has no view on this proposal, and may not even oppose it if the Supreme Court introduces it in the Act, by filling the void.

"MASHELKAR COMMITTEE EFFECT" ON THE DATA EXCLUSIVITY DEBATE

In a piece titled “Pharma firms will have to wait a while for data exclusivity norms”, the Economic Times states:

“Call it the Mashelkar effect! The Satwant Reddy committee, which is examining whether MNCs should be allowed to guard their costly clinical data from local rivals, is unlikely to take a call on the issue in the near future. The decision has been taken considering the sensitive nature of the issue and the strong opposition NGOs and a section of the pharmaceutical industry recently put up against R A Mashelkar’s report on patent laws, which apparently favoured MNCs. Mr Mashelkar, who resigned from the technical expert group following charges of plagiarism, had said that not allowing patents on incremental innovation would violate WTO agreements.

While the Left parties want further tightening of the law, MNC pharma companies seek a more generous regime. The law was designed in 2005 as a compromise between the two, with a commitment from the government to get it reviewed by Dr Mashelkar. Sources said that the data exclusivity panel may not submit its report by May, when Mrs Reddy is slated to retire as the chemicals and fertilisers secretary. The government apparently does not want another controversy at this point of time by granting data exclusivity — a demand from big pharma companies — which would either delay the arrival of copycat versions of patented MNC drugs in the market or make them less price competitive. Besides, the panel is yet to arrive at a consensus with the health ministry, which approves new drugs, on the issue. It is understood that health minister A Ramadoss had opposed granting of data exclusivity at the April 10 group-of-ministers meeting on the new pharmaceutical policy.

Mr Ramadoss pointed out that nothing beyond protection against leakage or theft of data submitted to the government can be granted, sources said. Moreover, it is in the government’s interest to reserve grant of data exclusivity as a possible bargaining chip in the WTO negotiations later on. It is interesting to note that the former chairman of the committee and Mrs Reddy’s predecessor in the ministry, Pratyush Sinha, too, had felt at the end of his tenure that time was not ripe to take a view on the issue.”


As I’d noted in an earlier post, I made a submission to this Committee, arguing that Article 39.3 did not mandate “data exclusivity. The abstract is below:

“The appropriate standard of protection for regulatory data (pharmaceutical and agro-chemical) under Article 39.3 of TRIPS is the subject of considerable controversy. This paper finds that the minimum standard mandated by Article 39.3 is neither one of data exclusivity (as argued by the US and EU) nor one of 'permissive reliance' (as argued by Professor Carlos Correa and others). Rather the term 'unfair commercial use' in Article 39.3 in effect envisages a 'compensatory liability' model, whereby regulatory data that complies with the pre-requisites of Article 39.3 (i.e. it relates to pharmaceutical or agricultural new chemical entities, is undisclosed and its origination involves considerable effort) cannot be used by any person, including a regulatory authority that uses such information to approve another product, without some compensation being paid to the originator of such data. The paper discusses some examples of such compensatory liability models. The paper also finds that current Indian law does not comply with Article 39.3.”

Here again, one has to bear in mind that there is a difference between a provision that is TRIPS compliant and a provision that furthers “national” interest. In other words, something that is TRIPS compliant need not always be in national interest and vice versa. The US failure to change its copyright law to comply with the WTO panel decision in the copyright “homestyle exception” case is a clear example—where domestic pressures have constrained the US government and prevented it from giving effect to this WTO ruling. India could therefore opt to do the same—i.e. to ignore any prospective WTO ruling in this regard that holds that Indian law does not comply with Article 39.3.

In any case, if the standard under Article 39.3 is clearly not one of data exclusivity, I’m not sure that the US or EU would risk bringing an action in this regard. This would compromise efforts of the US government in claiming that Article 39.3 demands "data exclusivity" and ratcheting up data protection standards through the clever use of FTA’s. Secondly, if a panel ultimately finds that it entails compensatory liability, this is a worse blow for the pharmaceutical industry than having a law (such as the current one in India) that merely prevents disclosure of data. Compulsory licensing is a term makes multinational pharma companies squirm. Not least because a compensatory liability model or a compulsory licensing model would force them to disclose “costs”. And given the oft repeated 800 million dollar pill cost (around which a number of the pro protectionist arguments are based), I’m not sure that they would want to divulge any data that could be subject to public scrutiny—as many think that this figure is not an accurate one.

Therefore, the smart thing for India to do would be to assess as to what is in “national interest” here and not worry about the TRIPS implications at this stage. Of course, India is also free to bargain away this TRIPS flexibility in Article 393. away for concessions in other fields (such as more access to Western markets for Indian goods/services and more international norms for biodiversity/traditional knowldege, an area which is of keen interest to India). Perhaps this is what the Economic Times article hints at when it states:

"Moreover, it is in the government’s interest to reserve grant of data exclusivity as a possible bargaining chip in the WTO negotiations later on."

Gail Omvedt on the need for a caste-based census

Today's Hindustan Times has a column by the sociologist Gail Omvedt who argues that the recent stay order on OBC quotas and the government's response to it, point to the need for a caste-based census in India. In her piece, she uses the example of race-based census surveys in the U.S. to argue that they need not necessarily produce social divisiveness. In the course of making her case, she also provides interesting insights on educational testing in India:

"Recognising the existence of race, like caste, is not the road to ruin, but is a necessary prerequisite for dealing with, and resolving, the issue.

Those who argue for ‘merit’ ignore the fact that merit is not linked to caste. Here, biological inheritance and social conditioning have to be carefully differentiated. The reason that people of ‘higher’ caste origin perform better lies in their environmental advantages, which range from the fields of education, socialisation to economic well-being. ... ... ...

In other words, IQ tests reflect a degree of environmental advantage and socialisation, even ‘learning’ about taking IQ tests. Even at an early age, this environmental difference is there. In many European countries, the average scores had risen because the scores of the lowest deciles rose faster: in other words, the spread of mass education had made a difference.

In India, there has been no such extensive academic and general intellectual debate about test scores, heredity and environment; only a good deal of frantic and self-justifying outpourings. But the examinations here, as well as interviews, are much less objective, much more culture-bound than IQ tests. Education is much more unequally distributed. Denial of caste inequalities has been less reasonable, more ingrained, more emotional.

In comparison with race, though, it is superficially easy to avoid dealing with caste: it is not so easily visible as race is, though both are equally social and not biological factors. There is a good deal of social interaction directed at understanding the other’s caste, but these are less obvious and visible. As a result, a superficial ‘passing’ is much easier, particularly for employment, if not for more personal issues such as marriage. Yet the scars of caste remain, of this there is no doubt. What is needed is more informed discussion and debate, not a closing of eyes, ears and mouths to mimic the monkey reaction to reality.

There is possibly little change since the 1931 census, which gave extensive information about caste. However, there is need for investigation: have some OBCs really become ‘affluent’? Aside from a few of their members, this is doubtful. The very fact that these are mostly rural-based groups, and the rural economy is in recognised crisis, should indicate that the average has improved. There is no point, however, in endlessly arguing. We need the data.

How does one handle a caste-based census? There has been, again, a lot of talk about the complications of the matter. The solution is simple: let everyone self-identify his or her caste. Those who want can say ‘no caste’ (in fact, this itself would be an important data from the census). Those who are out of mixed marriages or confused about their caste in anyway can also say this. A panel of experts at the State level can then make broad classifications out of the responses. There is, in other words, no great dilemma about how to do it. It only takes social will."

This may also be a good time to recall the 1999 debate between Omvedt and others on the left which was occassioned as a result of Arundhati Roy's involvement with the NBA. Though the debate seemed to be accompanied by a considerable degree of rancour, I for one found the content of the debate very instructive. Here is the open letter sent to Arundhati Roy by Gail Omvedt, and here is a link to the host of responses it elicited, including this from Ashish Kothari. This debate has continuing relevance for developmental issues in India.

New Twist to Mandal II: GOI's Application for vacation of stay reveals interesting facts

The SC’s Pasayat-Panta Bench has clarified that the March 29 interim order was indeed a stay of S.6 of the Central Educational Instituitons (Reservation in Admission) Act, 2006 with regard to OBCs, and not an advice. It has posted for hearing the application for vacation of stay filed by the Central Government to April 23. The Government of India’s application – while reiterating many of the claims made in the counter-affidavits – reveals the factual inaccuracies in the Interim order. Specifically, the statements attributed by the Bench to the Additional Solicitor General, Gopal Subramanium have been denied. The statement that ‘there is need for periodical identification of backward citizens and that for this purpose the need for survey of entire population on the basis of an acceptable mechanism is needed’ has been described as an inaccurate attribution by the Bench. The submission of the ASG was that a head count census was, in fact, not a possible or feasible option. As a matter of fact, what was further submitted by the ASG was that while as a general principle it was unexceptionable that there must be cogent data, in the present case, all requisite data is already available with the Government of India and the manner of collection of the said data and the methodology adopted for arriving at various figures had already been approved by this Hon’ble Court in Indra Sawhney.
The Government has also clarified that the staggering of the implementation of the 2006 Act was permitted in the statute, not on account of any infirmity in the data available with regard to the OBC population but having regard to financial, physical or academic limitations, if any, or in order to maintain the standards of education, if such limitation or difficulty was expressed by any institution. It was submitted that there was no statement made by the ASG that the staggered implementation of the Act was necessitated on account of any shortcoming in the data.
On the question of stay, the Government referred to the same case, which I had cited in one of my previous posts, but added that the present Act under challenge could be considered as a socio-economic legislation, if a distinction is sought to be raised between economic and non-economic ones to apply the principle laid down in that case. (in Bhavesh D. Parish v. Union of India, [(2000) 5 SCC 471] .
The Application makes one more point, which the discussion in this blog did not anticipate – that the Judiciary cannot examine the materials relied upon by Parliament for the purpose of legislation. It said: "the interim order dated March 29, 2007 appears to sustain a challenge which invites this Hon’ble Court to enquire into whether Parliament, while exercising its primary function, that of legislating, had material before it to support the enacting of the 2006 Act. The interim order dated March 29, 2007 further appears to sustain a challenge which seeks to scrutinize the adequacy or otherwise of the material underlying the 2006 Act. It is most respectfully submitted that such an inquiry departs from the well established principles in regard to judicial review of legislation".
The Application has also missed an opportunity to correct the wrong attribution of a paragraph (with a contrary inference) to Indra Sawhney, rather than to Justice O.Chinnappa Reddy in an earlier Judgment, (K.C.Vasanth Kumar) in a different context, which I have referred to in an earlier post. This paragraph in the Interim order cast aspersions on the OBCs, saying many of them queue up to claim the OBC status, without justification.
The outcome of the hearing on April 23, therefore, will be watched with interest.

Mehta's assessment of Supreme Court politics in India

The April 2007 issue of the Journal of Democracy has a feature on "India's Unlikely Democracy" which includes an article by Pratap Bhanu Mehta titled "The Rise of Judicial Sovereignty." Mehta's piece reiterates some of the analysis that he has advanced in his previous writings, and has the advantage of being a short and succinct overview of the role of the judiciary in post-independent Indian politics. Apart from its helpful descriptive analysis, the article contains many of Mehta's typically provocative and insightful comments. A sampling of these is included here, but the article as a whole is a good resource for those seeking an understanding of the important role played by the judiciary in India. Mehta makes the important point that

"[a]lthough most studies of Indian politics pay almost no attention to the courts, disputes between the judiciary and the other two branches have been as important a fact about Indian political life as any."

Mehta asserts that the Indian Supreme Court's body of work is characterised by what he calls "three profound ironies" which he describes as follows:

“First, even as the nation’s most senior judicial panel engages in high-profile PIL interventions,
routine access to justice remains extremely difficult. India’s federal judicial system has a backlog of almost twenty million cases, thousands of prisoners are awaiting trial, and the average time it takes to get a judgment has been steadily increasing. There is a saying in India that you do not get punishment after due process—due process is the punishment.

The second irony is that even as the Supreme Court has established itself as a forum for resolving public-policy problems, the principles informing its actions have become less clear. To the extent that the rule of law means making available a forum for appeals, one can argue that the Court has done a decent job. To the extent that the rule of law means articulating a coherent public philosophy that produces predictable results, the Court’s interventions look less impressive.

The third irony is that the Court has helped itself to so much power— usurping executive functions, marginalizing the representative process— without explaining from whence its own authority is supposed to come. In theory, democracy and constitutionalism can reinforce each other, but in practice their relationship is complex and even problematic.

The question of where one begins and the other ends has taken on global significance in light of the widely observed trend toward “postdemocracy,” according to which representative institutions are losing power to nonelected centers of decision making the world over. In India, unelected judges have effectively replaced the notion of the separation of powers among three governmental branches with a “unitarian” claim of formal judicial supremacy. The concept of the rule of law is supposed to legitimate this claim, but whether judicial supremacy— either as such or as exercised by the Indian Supreme Court—actually upholds the rule of law remains an open question.”

For me, the most insightful and simultaneously provocative part of the article was where Mehta makes the following claim:

"It is no accident that Indian constitutional law has been relatively unstable, or that the same courts which appear assertive in some areas seem weak in others: strong enough to spark the passage of many constitutional amendments meant to confound judicial rulings, but so easygoing
that no major politician has ever been charged in any of the numerous corruption cases that the Supreme Court has been supervising for years. The legitimacy and power that India’s judiciary does enjoy most likely flow not from a clear and consistent constitutional vision, but rather from its opposite. The Supreme Court in particular has given enough players enough partial victories to leave them feeling as if they have a stake in keeping the game of political give-and-take going. This, more than any ringing defense of principle, is the Court’s signal contribution to Indian democracy. (Emphasis added)."

My immediate reaction was to find this analysis persuasive, and I would be curious to know how others who have studied the Court's work would react to such an assessment of its functioning. The one worry I have with such an interpretation, however, is that it seems to suggest that the Indian Supreme Court is a homogenous institution, whose members work in concert with each other in designing the gameplan of the organisation and that this 'strategy' was conceived and implemented by the institution as a whole. The practical reality of a 26 member institution whose membership is constantly in flux, and which sits in benches of 2 or 3 judges must make us a bit wary of accepting Mehta's analysis uncritically. This is all the more so because Supreme Court judges are in theory supposed to work independently of each other, and each case is supposed to be decided on its own merits, by judges who have been randomly assigned to the bench deciding the particular case. The idea that judges adopt an overall strategy towards cases of a certain type, or that they discuss with other judges (who are not part of the particular bench) the approach or strategy that they should adopt in reaching a certain decision, would offend at least some of the accepted understandings about the judicial role. While the Court does have an overall institutional strategy on some issues, the fact is that it does not have very much control over its docket (unlike say the U.S. Supreme Court which controls access through grants of certiorari). While the Indian Supreme Court can control its docket (by deciding, for instance, not to grant SLPs in a certain category of cases) being simultaneoulsy a general court of appeal, its ability to do so is hampered.

I also worry that this analysis may lead to people becoming sanguine about individually egregious decisions of the Court, as they may think that the particular decision is just a part of a larger trend of cases that the institution is focusing on. This may lead, also, to a dilution of attention that should be focused on the justificatory reasoning advanced in support of each individual decision.The fact remains that given the nature of adjudicatory processes, decisions are made on an individualised, case-by-case basis, and the justification advanced for every decision should be capable of standing alone, instead of being understood as part of some overall utilitarian calculation.

The individualised character of litigation and adjudicatory processes makes the Court different from other political actors which can make policy decisions in the abstract. I believe that Mehta's analysis, while compelling as a general hypothesis, does not pay sufficient attention to this aspect of the Supreme Court's functioning.

Practical problems with the Special Marriages Act

Coomi Kapoor has a column in today's Indian Express which draws on her experiences to highlight serious problems with the implementation machinery of the Special Marriages Act, as well as the mindset of those who are charged with enforcing it. Her arguments are compelling and the entire piece makes a convincing case for reform. Here are extracts from the piece:

"In a conservative society like ours mixed marriages generally raise hackles and bring out society’s bestial side. Primeval passions are aroused when people are led to believe that one religion is asserting hegemony over another. Every now and then one reads about eloping couples who opt for conversion in order get married, leading to heightened communal tensions. The way it works in our country is that if a marriage has to be solemnised speedily and without red tape, both bride and groom have to be of the same religion. Conversion is an easy way out. At times, for convenience, both even convert to a third religion.

So why don’t couples from different religions apply to get married under the Special Marriage Act 1954, which was specifically drafted with people like them in mind? I am something of an expert on the way the legislation works, having gone through the cumbersome procedure twice for my two daughters, who chose partners from different faiths. Even in the national capital, the act is administered in a manner so that as many obstacles as possible are placed in the way. You either end up hiring a lawyer familiar with the working of the marriage office or muster enough determination, time and patience to go through the lengthy rigmarole.

... ... ... At the marriage offices in Delhi it is usually the clerks who interpret the law since they have been at the desk much longer than the young IAS officers who are additional district magistrates and burdened with numerous other duties, from riot control to elections. The trick in getting your way is not to be intimidated by the clerk, but to out-shout and out-reason him, quoting the relevant law. ... ....

When applying for permission to get married under the act, you have to work against a deadline, so that the considerable paper work is completed in at least a month, and not more than three months, before the scheduled date of the wedding. Be prepared to be scrutinised and sneered at by sceptical clerks and marriage officers who believe that there has to be something dubious about your intentions or you would not be in their office in the first place. A colleague recalls how minutes before her wedding the marriage officer called her aside, bolted the door and told her she was making a terrible mistake. He laboured under the delusion that his role was that of a marriage counselor, not a marriage officer. When I presented my daughter’s fiancé’s documents with the column for religion left blank, the marriage officer took great offence and snapped that he had never heard of anyone doing such a thing in all his years.

One of the most retrograde provisions of the act is the column enquiring about religious affiliation. Since the entire form — with addresses, photographs and religious affiliation of the couple — is pinned on the notice board for a month, couples from different religions become easy prey for fundamentalist outfits who demonstrate outside their homes shouting slogans. The need for publicising the details a month in advance is so that anyone can voice objection to the marriage. In contrast, for a religious ceremony no notice whatsoever is required. And no elementary verification is considered necessary of the pundits, maulvis and granthis who officiate. The provision (19) in the Special Marriage Act, which states that those who marry under it, whether Hindu, Sikh, Buddhist or Jain, will effectively be severed from their families, implies that they are to be penalised for marrying outside their religion.

Bigotry and religious prejudice can be eradicated from society only when the government leads the way. But when the guardians of the law themselves have ambivalent feelings on the subject, is it any wonder that eloping couples almost invariably keep their distance from the marriage office and the Special Marriage Act?"

Renewing focus on protection of whistle-blowers in India

An editorial in the current issue of the EPW seeks to highlight the importance of a Bill that aims at protecting whistle-blowers in India. It recalls the high-profile cases of S. Manjunath and Satyendra Dubey, and provides details of the bill, while reiterating the need to push for enactment of a law on the issue. In making its case for such a law, the editorial argues:

"[A]s the fate of whistle-blowers round the world shows, instead of the offender it is the complainant who is threatened andvictimised. The Dubey and Manjunath cases took on an urgency because they were killed and alumni from elite educational institutions kept the issues alive with the help of the media. There are other whistle-blowers who do not lack in courage, but are worn down by the humiliating harassment that the corporate powers and public corporations can mete out to their employees. It is such employees who need the protection of the law."

Quota debate : Need for Clarity

As the quota debate continues to rage in the media, evidence of gaps in understanding the issue has come to the fore even among well-known observers and recognized experts.
Today’s Times of India carries the article by Justice Rajindar Sachar, who has just submitted a report on the status of Muslims, as the chairman of the high-powered committee appointed by the Prime Minister. According to Justice Sachar, the Supreme Court’s Bench in the interim order has questioned the basis of the 27 per cent quota for OBCs, suggesting that the percentage actually could be less, as it was based on the flawed perception, that their population could be more than 27 per cent - whatever figure you take whether it is 52 per cent arrived by the Mandal Commission, or the 61st round of the National Sample Survey Organisation which put the figure around 41 per cent.
If you read the Interim order closely, the Bench is not hinting that the OBC population might be less than 27 per cent. It seems to share the petitioners’ view that Parliament intended fresh determination of OBCs for the sake of identifying the beneficiaries of the Act.
The relevant definition, at clause 2(g) of the 2006 Act, reads as follows:
Section 2 … (g) “Other Backward Classes” means the class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government.
The petitioners argued that there has been no such determination, nor has any methodology of identification been laid down in the Act, and therefore reservation for OBC under clause (iii) of Section 3 cannot be implemented or even started.
The Government rejected the argument, saying the lists of OBCs identified on the basis of social and educational backwardness have already been determined and notified by the Central Government in the Ministry of Welfare (now named as Ministry of Social Justice & Empowerment), which is the nodal Ministry in charge of the subject. These lists are State-wise. Once issued, these State-wise Lists continue to be in force and are binding for any or all purposes, subject to modifications, deletions, additions from time to time in accordance with the National Commission of Backward Classes Act, 1993 and in the light of directions of this Hon’ble Court in Indra Sawhney. These State-wise Lists, already notified by the Central Government, are and have to be automatically and naturally followed by every Ministry and other Central Authorities for any or all purposes pertaining to SEdBC/OBC such as making provisions in the Five Year and Annual Plans for development, scholarships, developmental loans by the National Backward Classes Finance Development Corporation, etc. apart from appointment to civil posts and vacancies reserved for them under any Ministry or Authority or body of Central Government. The same State-wise Lists already notified by the Government, with updating from time to time on the basis of any inclusions or exclusions or modifications from time to time as per law are also naturally followed for the present purpose of reservation for SEdBC/OBC which has been provided in the impugned Act. The interim order is silent on why this explanation of the Government is not satisfactory.
Instead, the Bench appeared to be keen on a debate on the interpretation of Section 2(g) of the Act. Did Parliament intend this `determination’ to be freshly made, as claimed by the Petitioners? Although the Bench left the question unanswered, it did not leave any doubt regarding where its sympathies lie. But if you take the intention of Parliament as a guide to interpret this provision, it is clear that Parliament did not at all intend a fresh determination, as a fresh determination would have meant keeping the Act in abeyance for quite some time. Had it been the intention, Parliament would not have unanimously resolved to enact this legislation, giving it utmost priority, before the academic session starts.
Nor do the plain words of the statute –read as they are – leave any doubt that Parliament did not want to wait for a fresh determination of OBCs to take place. In other words, the petitioners not only raised the issue of the correct OBC population in the country, but also doubted the correctness of the existing OBC determination, apparently suggesting that the current list includes many classes, which ought not to be there.
I share the view that we need a periodical survey to answer complaints of wrong inclusion or exclusion of certain classes from the current OBC list. But that does not make the existing list completely untenable. Even in Indra Sawhney, Justice Jeevan Reddy makes the point that the failure to appoint a Commission prelude to identification of OBCs itself does not make the inclusion of a class in the list untenable (paragraph 119). The example he cited was Goa, where the State Government included certain castes in the OBC list without a Commission's report to guide its decision.

He said:

"Even if in one or two cases (e.g., Goa), the list is prepared without appointing a Commission, it cannot be said to be bad on that account. The Government, which drew up the list, must be presumed to be aware of the conditions obtaining in their State/area. Unless so held by any competent court - or the permanent mechanism (in the nature of a Commission) directed to be created herewith holds otherwise - the lists must be deemed to be valid and enforceable.
The criteria evolved by Mandal Commission for defining/identifying the Other Backward Classes cannot be said to be irrelevant. May be there are certain errors in actual exercise of identification, in the nature of over-inclusion or under- inclusion, as the case may be. But in an exercise of such magnitude and complexity, such errors are not uncommon. These errors cannot be made a basis for rejecting either the relevance of the criteria evolved by the Commission or the entire exercise of identification, It is one thing to say that these errors must be rectified by the Government of India by evolving an appropriate mechanism and an altogether different thing to say that on that account, the entire exercise becomes futile. There can never be a perfect report. In human affairs, such as this, perfection is only an ideal - not an attainable goal. More than forty years have passed by. So far, no reservations could be made in favour of O.B.Cs. for one or the other reason in Central services though in many States, such reservations are in force."

In fact, his view appeared to be similar to my earlier view expressed in this blog – only to be contradicted by Mr.Vivek Reddy on this blog in an earlier post– that if the Government, by instinct, and impulse consider certain castes as backward, the view should be largely respected. Although the way I put this made it appear as unreasonable, if you look at it again in the context of what Justice Jeevan Reddy wrote in the context of Goa, you could see some force in the argument. Again the Government’s perception of likely social unrest if certain castes are not in the OBC list need not be considered in a vacuum, but has to be understood in the larger context. Earlier I had cited the 1921 experience of Mysore State granting reservations for backward classes; I understand that even this decision was preceded by Justice Miller Commission, which received representations from backward classes, to determine their eligibility for inclusion, although it might not have carried out a survey as such. Having said this, I am not at all against the usefulness of data or surveys to throw more light on the status of backward classes. But their absence – for whatever reasons – must not be used as an excuse to delay social justice.
The second point which Justice Sachar made is about creamy layer. According to him, since it is accepted as part of the Constitutional scheme, let the Government exclude the creamy layer beneficiaries from the purview of the Act, and await the Court’s full hearing on this matter.
It is not as if the Bench is not aware of the Government’s arguments against excluding creamy layer under the Act. The Bench is apparently not convinced, even though it has not given any convincing reasons for rejecting the Government’s stand. Whatever the justification, I see force in Yogendra Yadav’s suggestion – in the Times of India – that the creamy layer might be included within the 27 per cent quota, but they should be given the benefit, only if there were not sufficient non-creamy layer OBCs to fill the quota.
Asking the Government to exclude the creamy layer among the OBCs from the Act’s beneficiaries just in order to secure the Court’s interim clearance – as Justice Sachar has argued – is not a sound proposition. The purpose of reservations in the Indian context is not affirmative action, but distributive justice, and ensuring a fair degree of diversity and pluralism, apart from adequate representation – whether it is public service or educational institutions. If you keep on removing the creamy layers every year, then a stage will come, when there would be no SEBCs at all, and the very logic of extending reservations to SEBCs would be defeated, and the OBCs would be back to square one, competing with unequals in the rest of the society. I feel the creamy layer debate so far is very superficial – in terms of how judiciary understood it – and there is need for greater clarity and understanding of its various nuances.

Judges' Tenure: Need for rethinking

Can we find remedy for the ills of our judiciary by changing the tenure of Judges of Higher Judiciary? This article in Deccan Herald here argues that it can make a difference. And I tend to agree with the author. We need to compare the tenure of Chief Justice Chandrachud (the longest tenure a CJI ever had], with that of others to know what contribution a longest serving CJI could make. Alternatively, we should also bring out the extent of damage that a short-tenure CJI could cause to the institution. In the past, we have had CJIs for just 14 days, or 30 days, and there were always controversies surrounding the cases heard and disposed by them, not on merit, but on extraneous considerations. The author, N.Haridas, is unhappy with the seniority rule, because in his view it has led to selection of mediocre persons as Judges. The Emergency aberration notwithstanding - when India witnessed a phase of committed judiciary, having broken the seniority rule, Haridas says the earlier system wherein seniority was not emphasised, is still worth a try. Only recently in our blog, our co-bloggers, Arun Thiruvengadam and Vivek Reddy were discussing the deteriorating quality of judgments of our Superior courts, citing an article written in EPW by A.G.Noorani. Part of the reason, perhaps is that our retiring Judges are in a great hurry to write their judgments of cases heard by them, before they retire, and this deadline pressure leads to compromise with objectivity, balance, and consistency. If the Judges of the High Courts and Supreme Court have permanent tenures without retirement (as in the U.S.), will it not be an answer to many of these ills? A fixed tenure for the CJI is desirable to ensure proper leadership and administrative qualities in a CJI, but simultenously, we need to remove the retirement age-limit for the Judges, to make them truly independent, and make them less dependent on Executive, for post-retirment benefits.

Post-Thakur Analysis: A Discovery

Apart from the articles which Arun cited, there are two more worth reading. One by Abhishek Singhvi, and another by Praful Bidwai. Both have commented on the Bench’s opinion expressed in a particular paragraph. Singhvi's piece appeared in his column in Hindustan Times today while the latest Frontline carries Bidwai's column, Beyond the Obvious.
Singhvi says the interim order suffers from a certain degree of gratuitous dicta when it opines, and that too in an interim order, that “nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere…is there competition to assert backwardness and…to claim that we are more backward than you.” Singhvi says: one is certainly entitled to that opinion but when converted to judicial dicta, it treads directly on policy prescriptions sanctified by constitutional text. Since this could not have been the basis of the interim order, it was superfluous and unnecessary.
Commenting on the same paragraph, Praful Bidwai says: “People do not celebrate or enjoy backwardness. They suffer it and face discrimination, insult and humiliation because of it. Mocking at their aspirations to overcome backwardness betrays casteist prejudice.
As the interim order which carries this paragraph sourced it to Indra Sawhney judgment approvingly, I was curious to know the context in which the nine-Judge Bench made the observation. To my surprise, I discovered that it was not the Nine-Judge Bench in that case which made this observation. Indra Sawhney probably does not even refer to this, if I am not wrong. It was in fact made by Justice O.Chinnappa Reddy in K.C.Vasanth Kumar v.State of Karnataka (1985) [Supp. SCC 714.]
The interim order says in paragraph 21:

“The concept of creamy layer cannot prima facie be considered to be irrelevant. It has also to be noted that nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you. This truth was recognized as unhappy and disturbing situation and such situation was noted by this Court as a stark reality in Indra Sawhney's case (supra).
Justice O.Chinnappa Reddy’s judgment in K.C.Vasanth Kumar begins as follows: (Paragraph 32)
“Over three decades have passed since we promised ourselves "justice, social, aconomic and political" and "equality of status and opportunity". Yet, even today, we find members of castes, communities, classes or by whatever name you may describe them, jockeying for position, trying to elbow each other out, and, viewing with one another to be named and recognised as 'socially and educationally backward dashes', to quality for the 'privilege' of the special provision for advancement and the provision for reservation that may be made under Article 15(4) & 16(4) of the Constitution. The paradox of the system of reservation is that it has engendered a spirit of self denigration among the people. Nowhere else in the world do castes, classes or communities queue up for the sake of gaining the backward status. Nowhere else in the world is there competition to assert backwardness and to claim 'we are more backward than you'. This is an unhappy and disquieting situation, but it is stark reality. Whatever gloss one may like to put upon it, it is clear from the rival claims in these appeals and writ petitions that the real contest here is between certain members of two premier (population-wise) caste community classes of Karnataka, the Lingayats and the Vokkaligas, each claiming that the other is not a socially and educationally backward class and each keen to be included in the list of socially and educationally backward classes. To them, to be dubbed a member of the socially and educationally backward classes is a passport for entry into professional colleges and State services ; so they jostle with each other and in the bargain, some time they keep out and some times they usher in some of those entitled to legitimate entry, by competition or by reservation. Commissions have been appointed in the past to identify the backward classes, Governments have considered the reports of the commissions, and Courts have scrutinised the decisions of Governments; Cases have reached the Court too, then and now again. Once more we are told that the State of Karnataka is ready to appoint another commission and they have asked us will you kindly lay down some guidelines?"
Note that the interim order cites the words, “but it is stark reality”, but infers something else not intended by the original author of this passage. The words are significant, because it is these words which explain why Justice Chinnappa Reddy treats caste as the primary index of social backwardness in that judgment, and opines that there is an over-powering mutuality between poverty and caste on the Indian scene – a proposition with which the interim order is probably at odds.

Post-Thakur developments and analysis

The stay order in Ashoke Kumar Thakur is generating considerable governmental activity and news-analysis.

Today's issues of The Indian Express and the Hindu carry stories about the UPA government's overall strategy for vacating the stay on OBC quotas granted by the Supreme Court, a move which the stories predict will be resorted to within the week. The latest issue of Frontline has a cover story and related features focusing on the stay order granted in Thakur, including a piece and an interview conducted by our co-blogger, V. Venkatesan, who reiterates his views expressed in posts on this blog. This issue also includes a biting analysis of the order and its sorrounding circumstances by M.P. Raju, which is both provocative and insightful by turns. He pours scorn over the motivations of, and justifications offered by, the judiciary and the executive/legislature, and argues that the entire episode casts each of the wings of government in India in poor light. He also comments insightfully about the references to U.S. constitutional law in the stay order ( a topic that merits a separate post in itself).

Adopting a different standpoint, Yogendra Yadav argues that the stay order poses a delicate issue, and should be handled carefully. In a piece available at Outlook magazine's website, Yadav, who has conducted insightful academic research on this issue, argues for sobriety, calm and a spirit of moderation in asserting:

"The questions posed by the Supreme Court in its interim order should be seen for what they are, namely questions. The stay order does not question the foundations of the settled policy on affirmative action. It simply asks some hard questions necessary for fine-tuning the affirmative policies. I think these are fairly reasonable questions that anyone would wish to ask. Therefore, instead of trying to find out how not to respond to these questions, the government would do well to think hard about how to give straight answers.

The SC order could and should be turned into an opportunity to fine-tune the reservation policy. It is a delicate moment. A hasty or knee-jerk response of the kind suggested by some champions of social justice could actually lead to a rejection of the policy itself. ... Missing this opportunity could lead to irreversible damage to the cause of social justice."

Inder Malhotra and Harish Khare have contributed op-eds in the Express and Hindu respectively, where they offer somewhat contrasting views on recent developments involving the three wings of government. Malhotra, whose biography of Indira Gandhi is considered among the best available, recalls her efforts at securing a 'committed judiciary' as a cautionary tale in analysing current developments, and argues for respecting judicial authority for both pragmatic (the judiciary commands greater respect than the other wings) and principled reasons. Khare is more critical of recent judicial developments as well as practices within the judiciary, and his piece appears to be aimed at setting out guiding principles for Chief Justice Balakrishnan to implement.

Judicial Nepotism: Behind the Government's concern

The Union Law Ministry seems to have suddenly woken up to the danger posed by Judicial nepotism to judicial integrity. Its letter to the Bar Council of India - as reported by the NDTV -renews the debate on the issue. The BCI, which has disciplinary control over advocates, introduced Rule 6 with the hope that the Judges themselves would decline to be appointed in those courts where their relatives practised. The BCI knew that it would be difficult to ask advocates who have established good practice in a court to shift to another court just because their relatives had been appointed Judges there. That was why the BCI was reluctant to enforce the rule.
It can be argued - as sections of the Bar and the Bench have done - that the rule cannot be invoked against advocates as long as they do not argue cases before the Judges who are related to them. But the BCI favours a liberal interpretation of the rule in the face of allegations in the Bar that some Judges favour each other indirectly by obliging each other's advocate-kin. What is shocking is the sheer number of Judges and advocates who are their relatives working in the same courts, across the country. On July 28, 2003, the BCI forwarded to the Union Law Ministry a list of 131 Judges (out of a total 499) in 21 High Courts and 180 advocates with their names and nature of relationships. It appears there has been no substantial progress since then in judicial clean-up.

The Indian media's obsession with 'clashes' between the Judiciary and the Executive/Legislature

The lead stories in today's online issue of the Indian Express and the Hindu would have readers believe that Prime Minister Manmohan Singh has fired a salvo at the judiciary, thereby raising the spectre of a clash between the executive/legislature and the judiciary, especially over the issue of OBC quotas.

Digging a bit deeper into the background context reveals that this may be yet another over-reaction on the part of the media, and a sign of its constant need to generate controversies and imagine mountains every time it sees molehills.

The Prime Minister's remarks were delivered on the occasion of the annual conference of the Chief Ministers and Chief Justices of High Courts, which is chaired by the sitting Chief Justice of India, and has become an important forum for discussing policy issues relating to the judiciary as a whole. The agenda for this year's Conference, as posted on the website of the Supreme Court of India, is available here. (click on the first topic, and a Word document containing the detailed agenda will open up). Reading this together with the full text of the Prime Minister's speech (which is now available at the website of the PMO), makes it clear that the Prime Minister was making fairly obvious and non-controversial points in reacting to the agenda for the conference. The issue of PIL, for instance, was already on the agenda of the meeting, and in making his comments about preventing abuse of PILs (a point which has been made by innumerable jurists including sitting judges), the Prime Minister was not saying anything radical or new. Indeed, as one reads the PM's speech together with the agenda for the conference, it is clear that his speech was almost a point-by-point enumeration of the issues listed on the agenda.

While the media is fully entitled to parse leaves, and read between the lines, I cannot help wondering if in this case, it may be sniffing up the wrong tree. The event, one must remember, must have been planned months ago, and the mere fact that it coincides with the unfolding controversy over OBC quotas doesn't necessarily mean that we are headed for the long-awaited 'clash of the titans'. (For a similar over-reaction to a speech delivered by President Kalam in Nov 2005, see this post from the archives of the blog).

Even reading the quoted statements as full sentences reveals the problem with the interpretation being accorded by the media to statements which seem obvious and non-controversial. I will reproduce the relevant parts of the speech, which read like good advice for the three wings of government to bear in mind at all times. This may also account for why Chief Justice Balakrishnan seemed unperturbed when asked for his reaction to the PM's statement by the media. Looked at as a whole, it is hard to take exception to the expressed words and sentiments.

Here are the quoted statements:

“I feel privileged to be once again at this very important conference of Chief Ministers and Chief Justices of our High Courts. These are important and useful opportunities for representatives of the executive, the legislature and the judiciary to interact, both formally and informally. Apart from discussing various issues on the agenda, I hope each one of you will use this opportunity to gain a better understanding and appreciation of the other’s concerns and preoccupations. In this way this conference would be an important asset in mutual comprehension. Unless the three wings of the State understand each other better, they will not be able to function effectively in the interests of our nation and our people at large. The three wings have well defined roles and functions under our Constitution. However, all the wings have a common goal – which is the fulfillment of the hopes of the founding fathers of our Republic and as spelt out so clearly in our magnificent Constitution. Therefore, conferences such as these give us an opportunity to discuss contemporary issues which have a bearing on the organs of the State, particularly those issues where the interface between the organs is large.

... ... ... There are a few issues, which have been flagged for this Conference [by the organisers]. The most important issue is that of “pendency” and the growing backlog of cases in courts. ... ...

I do sincerely believe that the judiciary, the executive and the legislature have an obligation both to our Constitution and to our people, to work in harmony. Each one of these organs of the State have an important and vital role to play in improving the welfare and well-being of our people. Each one of the organs have their Constitutionally assigned roles and responsibilities, and these must be discharged in all honesty. Each organ must respect the roles and functions of the other. Powers accorded to each organ must be exercised cautiously.

In the context of judicial reform, the primary obligation is to enforce the rule of law, uphold the Constitution and enforce the discharge of obligations by any authority of the State. This confers enormous powers on our judiciary, rightly so. But at the same time it also involves enormous responsibility - in the exercise of these powers. Courts have played a salutary and corrective role in innumerable instances. They are highly respected by our people for that. At the same time, the dividing line between judicial activism and judicial over-reach is a thin one. As an example, compelling action by authorities of the state through the power of mandamus is an inherent power vested in the judiciary. However, substituting mandamus with a takeover of the functions of another organ may, at times, become a case of over-reach. These are all delicate issues which need to be addressed cautiously. All organs, including the judiciary, must ensure that the dividing lines between them are not breached. This makes for a harmonious functioning.

So is the case with Public Interest Litigation. PILs have great utility in initiating corrective action. At the same time, PILs cannot become vehicles for settling political or other scores. We need standards and benchmarks for screening PILs so that only genuine PILs with a justiciable cause of action based on judicially manageable standards are taken up. This will also ensure consistency in judicial pronouncements. The Supreme Court could take the lead in framing rules in this regard.

Conferences like these can play a very important role in helping us understand each other better and work together in the discharge of our respective duties. I hope it is in this spirit that these proceedings will be conducted. I wish you all success in your endeavour. I thank you.”

Update: April 10, 4pm The full text of the speech delivered by Chief Justice Balakrishnan at the same event is now available at the Court's website. (This is a very welcome development, and one hopes that such alacrity will become a regular feature of other aspects of our judicial system). For me, reading the text of the speech resulted in a very different impression of the tone and substance of his remarks (to be contrasted with the impression conveyed by this newsitem in yesterday's IE). It seems to me that in the hullabaloo over the implications of the CJI's fairly innocuous opening remarks, the more significant contents of the speech, where he outlines the latest official figures about judicial delay in the Indian legal system, have gone unnoticed. Here are the parts of the speech where the actual figures are discussed:

"The real problem is that the institution of cases in the Courts far exceeds their disposal. Though there is a considerable increase in the disposal of cases in various courts, the institution has increased more rapidly.High Courts increased their annual disposal from 980474 cases in the year 1999 to 1450602 cases in the year 2006, the cumulative increase being 48% in seven years, without there beingcommensurate increase in the strength of judges. However, the institution increased from 1122430 cases in the year 1999 to1589979 cases in the year 2006 leading to increase in pendencyfrom 2757806 cases as on 31st December, 1999 to 3654853
cases as on 31st December, 2006.

Subordinate Courts disposed of 15842438 cases in the year 2006 as against 12394760 cases in the year 1999, thereby, increasingthe disposal by 28% in seven years without any substantial
increase in the strength of Judges. However, the institution increased from 12731275 cases in the year 1999 to 15642129 cases in the year 2006, resulting in the pendency getting increased from 20498400 cases as on 31st December, 1999 to 24872198 cases as on 31st December, 2006 The average disposal per Judge comes to 2374 cases in High Courts and 1346 cases in Subordinate Courts if calculated on the basis of disposal in the year 2006 and working strength of Judges as on 31st December, 2006. Applying this average, we require 1539 High Court Judges and 18479 Subordinate Judges to clearthe backlog in one year. The requirement would come down to 770 more High Court Judges and 9239 more Subordinate Judges if the arrears alone have to be cleared in the next two years. The existing strength being inadequate, even to dispose of the actual institution, the backlog cannot be wiped out without additional strength, particularly, when the institution is likely to increase and not come down in the coming years.

... ... ....On the recommendations of 11th Finance Commission Fast TrackCourts of Sessions Judges were set-up for disposal of long pending sessions and other cases. These courts have been quite successful in reducing the arrears. Most of the criminal cases in ubordinate Courts are pending at the level of Magistrates. 16677657 criminal cases were pending before Magisterial Courts as on 31st December, 2006. Keeping in view the performance of Fast Track Courts of Session Judges, Government of India should formulate a similar scheme for setting-up Fast Track Courts ofMagistrates in each State, as recommended by the previous Conference of Chief Ministers and Chief Justices held on 11th March, 2006.

The pendency of Civil cases in Subordinate Courts has increased from 6925913 cases as on 31st December, 2000 to 7237495 cases as on 31st December, 2006. It is common knowledge thata large number of pending civil cases are very old. Huge arrears of civil cases cannot be wiped out by regular courts. It is, therefore, necessary to set-up Fast Track Civil Courts and transfer part of the pending Civil cases to those Courts for disposal.

As many as 5201876 cases involving petty offences were pending in Magisterial courts as on 31st December, 2006. Since the pendency before regular magisterial courts is very high, we need to transfer such cases to courts of Special Magistrates to be manned by retired judicial officers/senior government servants, as decided in the last Conference of Chief Ministers and Chief Justices. State Governments should take immediate steps to appoint such Magistrates in adequate number and provide necessary infrastructure for them."

SC's Stay on Mandal II: A response to Mr.Vivek Reddy

At the outset, let me welcome Mr.Vivek Reddy to our lively blog. I look forward to reading similar spirited debates, which the SC's Mandal decision has provoked in our blog.
To begin with, I must admit that there are certain areas of disagreement. Mr.Reddy starts with the premise that the objective of quotas is to ensure freedom of opportunity for social and economic advancement. Reservation is group-oriented, not individual oriented. Many Benches of the Supreme Court have upheld this view. One consequence of this view is that we can't hope to empower all the individuals. There may be individuals in a group, who are not beneficiaries of this group-based reservation, but this is inevitable.
Secondly, I have not opposed judicial review of reservation. My only ground for opposing the latest stay of the two-Judge Bench is that it is not based on any reasoning at all.
Thirdly, Mr.Reddy says Constitution commands creation of a casteless society. I don't think his belief is correct. Constitution only guarantees a right against caste-based discrimination. Caste is one of the prohibited grounds of discrimination along with others, such as sex, religion, region etc. We cannot, therefore, conclude that Constitution commands a sexless, a religion-less society. The word `only' has to be noticed in Equality Articles. It prohibites discrimination on the basis of only caste, sex, etc. Courts have held that if you combine one of these prohibited grounds along with other non-prohibited grounds, then the discrimination resorted to is valid. It is now fairly clear that Mandal List/State Lists/ the Govt. of India's lists are not based only on caste factor, but is based on a multiple criteria. The Mandal Commission for instance, evolved a multiple criteria, and gave different weightage to each criteria, and whichever caste secured 50 per cent weightage, then it was put in the list. Caste was considered as a unit, along with others, and this has been found valid in the Indra Sawhney judgment.
I admit my view that "if the modern-day governments instinctively, and by way of impulse and formal and informal studies consider a caste as backward, such consideration can be largely respected" is not tenable. I stand corrected, having found Mr.Reddy's arguments very persuasive.
His elaboration of Justice Jeevan Reddy's qualifications to identify backward classes is helpful. There are two stages. One is identification, and then revision. Indra Sawhney, no doubt, elaborates how a backward class can be identified. And it has approved the way the Mandal commission did it. The once-in-10 years survey is relevant for revision. Now, can the NCBC be faulted for its stand that a survey-based revision within 10 years is unlikely to result in removal of any class from the list? Still, I agree that there is a need to revamp the NCBC and even a direction could be issued to it by the Court to follow the guidelines if any in the Indra Sawhney judgment with regard to revision. The List was found valid in 1992, and the implementation started in 1993 with regard to public services. How could there have been so many classes within 10 years who might have become ineligible to be in the list in terms of SEBC criteria? It is in this context, I referred to the government's instinctive feeling that a survey or a head-count may not be necessary to arrive at a conclusion which is obvious: that there may not be any caste which deserved to be removed from the list within the course of 10 years. Still, if the petitioners have any reason to challenge it, they could have approached the NCBC, with their complaint. They have not done so.
I am not sure -as Mr.Reddy thinks - that the Indra Sahney judgment requires the Government to undertake a fresh identification of SEBCs (as compared to revision for the purpose of exclusion and inclusion) on the basis of a head-count or a survey, however imperfect it may be. May be I need to study the relevant parts of the judgment, to convince myself. I am in agreement that a fresh survey, even similar to what the Mandal Commission had undertaken - could be initiated, but till such time, the existing lists need not be abandoned, as it would amount to depriving the benefits of the really needy classes. The 2-Judge Bench, the petitioners, and Mr.Reddy all seem to believe that much water has flown over the 10-15 years, that some communities, who do not fulfil any criteria of SEBC, are enjoying the benefits under the list. This assumption, in my view, has to be tested, by taking some representative castes, like Vokkaligas, for instance, and assess their relative backwardness. I have my reservations about the merits of doing a survey of the population, because it brings the proportionality element. Supposing if a State is predominantly illiterate, and socially backward, would not the proportionality element result in pruning of the list of OBCs in that state to unacceptable and even unconvincing level?
I agree that under the presumption of constitutionality principle, the burden of proof shifts to the Government, once the petitioner begins to show that the statute is unconstitutional. In this case, the petitioners have made only empty assertions and allegations. There is not even a prima facie ground. I did not say that the petitioners must prove absence of data. The Government has presented to the Court in its counter-affidavits why it thinks the data behind the OBC lists are objective material, citing Justice Pandian's judgment in the Indra Sawhney, which considered similar objections against the data.
The petitioners' main ground of attack is that 52 per cent OBC population figure is not credible. But they are not saying whether the 27 per cent quota is excessive or less. I agree with Mr.Reddy, that whatever percentage of SEBC population, they deserve protection. Therefore, if a 27 per cent quota is fixed, in view of the 50 per cent ceiling, why should there be any objection from the petitioners?
There are some indications that the two-Judge Bench was confused, and this led to lack of objectivity. In paragraph 31, they say that the lists relatable to Article 16(4) form the foundational base for Article 15(5), the source of the latest law. Now, both the Bench and the petitioners seem to challenge the credibility of the lists relatable to 16(4), even though Indra Sawhney Bench had upheld those lists. By entertaining the petitions against these lists, is not the two-Judge Bench shaking the basis of the 16(4) reservations also? If the lists are all right for 16(4), then the SC appears to say, it has no problems if creamy layer is excluded under 15(5), if the same lists are adopted under the Act being challenged. Therefore, SC would not appear to question the credibility of the lists as such. As far as the creamy layer also, the Bench would like to examine the Govt.'s stand in detail. It is in this conceptual confusion, and lack of self-confidence that it could stay the operation of Section 6, (many would deem it as overruling the Indra Sawhney judgment by a smaller bench), the Bench has perhaps found it desirable to keep S.6 in hold. Is not the Government correct in seeking a clarification whether it amounts to a stay, and if it is,, should not a larger Bench (than Indra Sawhney) hear the matter? After all, if the lists are not credible, because of the lack of survey etc, then the 16(4) quota also would come under attack.
( I am thankful to Dr.M.P.Raju, advocate, Supreme Court of India for helping me to understand some of the issues, and Mr.P.S.Krishnan, advisor to Human Resources Development Minister, Arjun Singh, for clarifying certain doubts. However, I am alone responsible for any gaps that the reader may come across in the post.)

Chief Justice Verma's views on recent Supreme Court decisions and trends

Over the last two days, the Indian Express has carried excerpts from a public lecture recently delivered by Chief Justice J. S. Verma. The two parts of the lecture as carried in the IE are available here and here.

The lecture is unusual in that Justice Verma has been extremely forthright (for a judge, that is) in sharing his views on some recent controversial decisions. One should recall that Justice Verma authored some of the prominent decisions of the Court during the 1990s which attracted criticism for being 'activist' and beyond the powers of the judiciary. Interestingly, much of his lecture is directed at more recent decisions which he feels are subject to the same line of criticism.

After spending the first part of his lecture outlining his general views about the proper role of the judiciary, Justice Verma turns to cases that he considers may be problematic as per his analysis. Justice Verma differentiates between cases that he sees as justifiable (a category within which he includes the Supreme Court's intervention in forest matters, and the Visakha case), and those that have "legitimately" attracted criticism. I focus, in this post, on the latter category, and include extracts from his lecture which focus on this line of cases:

"Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.

Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.

Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi."

The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided."

Later on, Justice Verma offers specific reasons why he thinks the recent decisions of the court in the Jharkhand case and the 'cash for queries' case are problematic:

"Jharkhand order

The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.

It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.

‘Cash for query’ case

This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.

The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.

The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict."

As I said before, the contents of the lecture are intriguing not because they contain startlingly new insights - indeed, many of the points raised by Justice Verma have been advanced by several commentators (although perhaps not in the space of a single, overarching piece). What makes this noteworthy is that a former Chief Justice of India has felt obliged to make public comments about these cases, and in the context of an academic lecture. Such a trend is to be welcomed, because such discussions will inevitably raise the quality of judicial decisions in future, as courts become more sensitive to the way their decisions are perceived, and try to meet such concerns before they decide future cases.

I also think it is important that Justice Verma's views in turn be subjected to strong scrutiny, matching the spirit which presumably motivates his comments. I for one am unsure whether environmentalists and activists for women's rights would agree with Justice Verma that the Forest and Vishakha cases are unqualified successes for the respective movements. I am also not entirely certain that Justice Verma (who, it should be recalled, was the author of the S.C.A.O.R.A opinion that resulted in judicial appointments in India being under the control of the judiciary itself, and has been cited as the most egregious instance of judicial activism in recent years) has clearly laid out the boundaries between justifiable judicial actions and those that would amount to adventurism. The challenge for students of constitutional law is to evolve criteria which enable us to assess the differences between these two categories by some concrete (or objective) means. The difference cannot simply be whether we like particular results in particular cases, or think that some other course of action was more desirable in such cases.

In Defense of the SC order on OBC quota

Let me begin my first blog by thanking Arun and Vikram for allowing me to join the blog team. I cannot think of any other place – print & electronic – where there is more lively and active discussion of Indian Constitutional Law. I hope I can make a useful contribution.

Mr. Venkatesan in his rejoinder to my comments makes a strong attack on the Supreme Court stay order. I am sufficiently provoked by his incisive comments to posting this response. In his comments, Mr. Venkatesan has raised issues which go beyond his previous post. Given the nature of his comments, I thought the best way to do justice was to give my detailed justification for the SC order on OBC quota. Apologies if this response was long

Before I respond to Mr. Venkatesan’s post, let me outline where I stand on OBC quota.

Our Constitution commands the creation of an egalitarian society where everyone gets the freedom of opportunity for social and economic advancement. To that extent quotas may be a useful instrument for achieving that objective, provided they are structured in the right way and targeted to the right audience. The executive should certainly have flexibility in designing these programs, but not to the exclusion of an independent judicial review, which is necessary to ensure that these programs are targeted to the right audience. I also believe that the Constitution commands the creation of a casteless society. I understand that caste is a social reality that cannot be wished away easily, but reinforcing it through caste centric quotas—without any investigation into a caste-neutral mechanisms which can reach the same audience—is certainly not the right path for the creation of a casteless society. My biggest concern with caste centric programs is that it facilitates identity politics. It enables the political leadership to use caste as proxy for performance. It creates a vested interested in continuing the caste system. The best example is probably UP where you “don’t caste your vote, but vote your caste.” The political class is not going to stop these programs because they have built a constituency around it. The Supreme Court in Indra Sawhney had a rare opportunity to stop this program, but unfortunately the Court ended up blessing these programs.

The key point which I intend to make through this post is that the government is bound by the entire ruling in Indra Sawhney. It cannot accept those parts which favor it and discard the inconvenient parts.

Requirement of objective material.

Mr. Venkatesan in his rejoinder undermines the requirement of providing data to support quotas. He asserts that “surveys conducted on a large scale are not the answer to determine whether a caste is SEBC. The answer has to be found in anthropology and sociology, not in statistics.” In his opinion, “if the modern-day governments instinctively, and by way of impulse and formal and informal studies consider a caste as backward, such consideration can be largely respected”

I find it difficult to share his opinion given unambiguous language in Indra Sawhney. His assertion belies the compromise formula evolved by the Supreme Court in Indra Sawhney in 1992. Some background explanation is in order to explain this point.

In Indra Sawhney, the legal legend Nani Palkhivala rightly contended that caste is a constitutionally prohibited criterion in Article 15(2), Article 16 and Article 18 and it cannot become a permissible criterion when it comes to identification of “backward class”. On the other hand, Union of India contended that caste has to be the dominant consideration. Three judges accepted Mr. Palkhivala’s contention (Justice Thommen, Kuldip Singh and R.M. Sahai). Justice Pandian rejected it. Justice Jeevan Reddy, speaking for four judges, stuck the middle ground. He did accept the government’s contention that caste being a social reality can be used to identify backward classes, but he hedged it with the following qualifications and it is these qualifications which acquire importance in this case. These qualifications are: (The paragraph nos are from 1992 Supp (3) SCC 217

a. The authorities can adopt any reasonable method to identify backward class. It can begin with caste, but it cannot be solely based on caste.

b. While identifying backward class, it must be done with reference to the entire population of the state. Para 796-797—(“any method so long as it covers the entire populace. …The central idea is that it should cover all groups, classes in society.”) See Para 782—(“ultimate idea is to survey the entire populace”); Para 782—(“effort should be to consider all available groups and classes, in whichever order one proceeds”);

c. An assessment of “backwardness” has to be made in comparison with the rest of the population of the state. Para 795—(“backwardness being a relative term must be judged by the general level of advancement of the entire population of the state.”)

d. A periodic revision has to be held.

e. Any approach used to identify backward classes has to be “fair and adequate” (Para 783)

f. Any determination of backwardness has to be based on objective social criterion. (Para 737) (“Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. … the exercise is an objective one. Certain objective social and other criteria has to be satisfied before any group or class of citizens could be treated as backward.”)

g. Creamy layer has to be excluded (Although this observation was made in the context of 16(4), it was subsequently extended by the Supreme Court judgments to Article 15(4) also)

h. Judicial review is always available to ensure that the assessment of backwardness is done in an objective manner.

This is a carefully hedged formula which was evolved in Indra Sawhney. If the govt want to use caste as a basis for identifying “socially and educationally backward class”, it also has to implement these processes which have been designed to identify backward class. Mr. Venkatesan cites the first instance of reservation in 1902 and 1921 where the “princely states did not go about collecting data, but responded immediately to the demands, in order to prevent social unrest” But between 1921 and 2007, we had a Constitution which does not contemplate quota on the basis of social unrest, but rather on an objective determination of backwardness.


What kind of data is required to show that OBC are “socially and educationally backward”?

Mr. Venkatesan poses a question to me as to what kind of data is required to show that a particular caste constitutes a backward class. He says “large scale surveys” are “naïve” and they would not lead to “fool-proof results”. Neither a large scale survey nor a fool-proof material is required.

The Supreme Court in Indra Sawhney has given the broad methodology for identifying backward classes. Under this method,

1. The government has to lay down the criterion for identifying backwardness. These criterion have to be fair and adequate.
2. Based on the criterion, the government has to conduct a survey of the population.
3. The government then has to make an assessment as to whether a particular caste/community is backward compared with the rest of the population.
4. This survey has to be held once in 10 years by an independent backward classes commission.

Does the survey need to go and each and every village? Not necessary. As long as the government identifies fair and adequate criterion and uses a reasonable sample, the court will not interfere. Does the sample needs to be perfect? Again not required.

In Indra Sawhney, Justice Jeevan Reddy laid down the “best efforts” test – the commission has to use its best efforts in identifying backward classes. It need not collect all the particular materials and reservations. (“In spite of best efforts that any commission may make in collecting materials and datas, its conclusions cannot be always scientifically accurate in such matters. Therefore, the proper approach, in our opinion should be to see whether the relevant data and materials referred to in the report of the Commission justify its conclusions.”) (relying on State of AP v. Balram, AIR 1972 SC 1375)

Isn’ t this elaborate process time consuming and detrimental to the interests of backward class?
Yes. It is time consuming and that’s why it is supposed to be done once in ten years. This process is required because “backwardness” suggests a relative state of affairs. A community can be identified as “backward” only in comparison to the state of the general population. Identifying the deserving “backward classes” is important because it ensures that quota benefits reaches the correct audience. The government just cannot “instinctively and by way of impulse” identify backward classes. Such unrestricted freedom could lead to perverse results and goes against the approach laid down in Indra Sawhney

Should not the same methodology be followed for SC and ST?

Mr. Venkatesan asserts that the if this requirement for data and periodic survey is applied for OBC, there is no reason not to extent it to Scheduled Castes and Scheduled Tribes. I differ. There is a strong conceptual difference between SC/ST and backward classes when it comes to quotas.

First, as I pointed out earlier, “backwardness” is a relative state of affairs. A community is backward only with reference to the entire population and that’s the reason for a periodic survey of the population and objective material before a community or caste can be assessed as backward. But SC/ST are a fixed class of communities. Their composition does not change based on the rest of the society. Even if a society advances they will be still be entitled to quota. But backward classes are entitled to affirmative action as long as they are backward, but once they move out of that category, they are no longer entitled to reservation. Only on the basis of a survey, one can determine who should be included and excluded among backward classes. This is never done for SC/ST. The only exception where a survey of SC/ST population is required is for the purpose of Article 16(4) which requires an “adequate representation” in proportion to the population. The objective of that survey is not an enquiry into the status of SC and ST, but rather an inquiry into their population.

Second, there is a strong historical reason for this distinction. SC/ST's have not been part of the society for over hundreds of years. As untouchables, society did not even interact with them. But OBC’s were part of the society, but at the lower end. They suffered discrimination at the hands of the upper caste.

Does the Govt have enough material to show that OBC’s are backward?

Now comes the crucial question – did the government have “objective material” before introducing the 27% for OBC quota? Does the state have any material which shows whether the various OBC qualifies as a backward class? According to Mr. Venkatesan the government does have material. He relies on the Mandal list and the state lists of backward classes which forms the basis for the central list of backward classes. Let me deal with each of them

a. The Mandal list: The Mandal Comission list which was submitted in 1980 and was based on the data from the 1961 census (even though 1971 census was available).

b. Most of the state lists have not been revised for decades. In AP the last time a survey of backward classes was done was in the year 1972. Most states have not revised their lists for almost three or four decades. Karnataka has recently initiated a comprehensive exercise of identifying backward classes.

c. While most states have appointed backward class commissions, their recommendations are based on surveys conducted three decades ago. They have not undertaken any fresh surveys.

d. Not are these state lists old, most states also do not maintain separate lists of backward classes for the purpose of Article 16(4) and Article 15(4)

The central list of backward classes is thus vitiated because it is based on state lists which are themselves obsolete. One cannot provide quota for backward classes in 2007 which have been identified way back in the 1970’s.

Mr. Venkatesan places strong reliance on the National Commission of Backward Classes (NCBC) to show that this Act has appropriate mechanism to deal with the concerns on these state lists. I differ for the following reasons

First, section 11 of the NCBC Act, based on the Indra Sawhney judgment, imposes an obligation on the Central government to conduct a revision every 10 years in consultation with the NCBC. As per Indra Sawhney, the government has to conduct a survey. Chapter VI of the Annual Report of the Commission for 2003-04 (this is the latest report available online on the NCBC site) clearly admits that a revision requiring survey has not been done and requests the central government to provide assistance and infrastructure for this purpose. The NCBC felt constrained to reiterate its recommendations of earlier years in its Annual Report. Let me quote the commission itself – “There is also the important task arising out of Section 11 of the National Commission for Backward Classes Act, viz. the revision of the Central lists, which is a massive exercise. In carrying out such tasks, the Government and the Commission will feel utterly handicapped in the absence of generation of relevant data/information regarding castes/communities. … This is essential particularly for the purpose of the revision of the Central Lists envisaged under Section 11 of the National Commission for Backward Classes Act. So far none of the States have been able to furnish to this Commission, adequate and useful data in respect of castes/communities contained in the respective Central Lists for these States.” Clearly the NCBC itself admits that the states have not provided any data and they are still tinkering with the three decades old state lists. A revision without a survey would not only amount to a violation of Indra Sawhney, but also a violation of Section 11 of the NCBC Act

Second, Mr. Venkatesan strongly relies on power of the Commission to examine complaints of over inclusion and under inclusion (Section 9 of the NCBC Act). He faults the petitioners for not relying on this mechanism. I strongly differ. It will be futile to rely on such a mechanism. Over inclusion/under inclusion complaints can only be judged against the backdrop of a proper framework which has been devised after conducting a survey based on “fair and adequate” criterion. In case of OBC, since the framework itself goes back to the early seventies for many states, the only way you can judge a complaint is by going back to the criterion by which those lists have been devised. This in turn perpetuates the mistakes committed in identifying backward classes.

Clearly the OBC quota as it stands now is based on highly questionable data. The judiciary is certainly entitled to ask the government for objective material support its policy.

Another advantage of doing a survey of the population is that it brings out the proportionality element. Backwardness is not a fixed concept and there are varying levels of backwardness. Quota is the extreme step which may not be justified if the backwardness can be redressed by a preference in terms of extra marks or any other such mechanism.

The real reason why most states are not inclined to do a survey is because of a fear that certain communities might have to be excluded and some of them are politically powerful (The Vokkaliga community which is an OBC in Karnataka has been often cited as an instance)

In my personal opinion, I would rather prefer a deprivation index (borrowing from the work of several sociologists) in which caste is “a” factor and not “the” factor in identifying backward classes. Social and educational backwardness can be a product of poverty, education, social milieu, parents profile and place of birth and therefore all of them have to be taken into account. Giving quota to a OBC candidate who was born to well educated parents, attends an English medium private school and grows up in an urban milieu over a non-OBC candidate who is born in a rural village, goes to a govt school, born to illiterate or semi-educated parents is to my understanding a clear violation of Article 15 (1) which prohibits discrimination on the basis of caste and there is nothing in the Constitution – not even Article 15(4) – that justifies such a result. This scenario is not an exception, but a social reality. (The only way one can say it is an exception is on the basis of recent objective material which the government does not have!)

Was the Court justified in giving the stay?

I don’t have any strong views on this aspect. Although a stay on a legislation should not be granted as a matter of course, it is certainly not unprecedented. I do think the Court was justified in staying the statute. Mr. Venkatesan relies on presumption of constitutionality and balance of convenience.

First, the presumption of constitutionality is a well settled constitutional law principle. But it is still a presumption and like all other presumption, its sole purpose is to shift the burden of proof. In Constitutional law, this presumption operates to impose a burden on the petitioner to show the statute is unconstitutional. The petitioner has to begin by showing that the statute is unconstitutional. Once the petitioner does that, the burden shifts to the government to defend the statute. In this case, the petitioner has asserted that OBC quota violates Article 14 and in particular Article 15(1) and it is not protected by Article 15(4) and 15(5) since the material on record does not support quota for OBC. But Mr. Venkatesan wants the petitioner to prove the absence of data. I doubt the Court has ever asked a petitioner in a constitutional litigation to prove a negative. In constitutional and administrative cases, once the petitioner alleges lack of material, it is the government’s job to show that it based its decision on objective material since that information is within the exclusive possession of the government. In this case, the petitioners showed that the existing material did not support the OBC quota decision, and the judge found that the government failed to show any objective material which backs the decision of the government to have 27% quota. So he gave more time for the government to submit material to back up their decision. It is in this context, I made the assertion in my previous comment that what the court is really saying is that the law is unconstitutional as of today but can become constitutional if the government presents sufficient data. The judge held a mini-hearing for the purpose of granting a stay order. And once he did that, he is perfectly entitled to grant a stay order.

Mr. Venkatesan relies on the R.K. Garg case. If I am not mistaken that case was in the context of a VDIS scheme which falls within the realm of economic policy. The Supreme Court has always professed a strong doctrinal indifference to reviewing economic decisions which involve policy. But the situation completely changes when it comes to caste centric reservation since it is based on the constitutionally prohibited criterion of caste. Some of the Indian judgments have used the American terminology of “strict scrutiny” when a constitutionally suspect classification of caste or religion is invoked. An economic legislation does not attract that level of scrutiny.

Second, the concept of balance of convenience is a concept which is borrowed from civil procedure. It is invoked when the Court does not have the time to hear the parties on the merits of the case, but has to award interim relief. When the case first came up before this Court, the balance of convenience was in the favor of the government, but once the court heard the parties and examined the written submissions, the concept of balance of convenience is no longer relevant.

NOVARTIS CASE TRANSFERRED TO THE IPAB

Pursuant to an earlier post on this topic, the Madras (Chennai) High Court has transferred the Novartis matter to the Intellectual Property Appellate Board (IPAB). As I'd mentioned earlier, this is circuitous, as the matter is likely to find its way back to the High Court, by way of a writ petition against the order of the IPAB. For those of you interested in a succinct exposition of this case, read this article from IP-Watch, a news service that is gaining reputation as one of the most authoritative on matters of international intellectual property.

Fortunately though, the Madras High Court has not transferred the entire case to the IPAB, but only that bit that relates to the patentability of Imatinib Mesylate (the pharmaceutical salt form underlying the anticancer drug Gleevec). As those of you familiar with this case know, Novartis had appealed the Controller's decision that Imatinib Mesylate was not patentable, since:

1. It is not new (it is anticipated from a 1992 patent application covering the Imatinib base)
2. It is a salt form that does not demonstrate an "increased efficacy" over the earlier known Imatinib base and hence is unpatentable under section 3 (d). Novartis had also challenged the TRIPS compatibility and constitutionality of section 3(d). Since the Madras High Court completed hearing arguments on this aspect, the court decided to not transfer this aspect of the matter, but has reserved judgment. In any case, I'm not sure that the IPAB would have had jurisdictional competence to rule on this particular aspect of the matter.

Which way is the court/IPAB likely to go? Difficult to tell at this stage, but to the extent that one might reasonably predict outcomes, this is my take:

i) The Madras High Court is likely to avoid ruling on the TRIPS compatibility of section 3(d). Firstly, since India is a "dualist" nation, international treaties are not directly enforceable in India, but have to be separately legislated upon before they are enforceble. No doubt, the Vishaka case was an exception to this rule--but one will remember that the court was careful to qualify that international norms would be incorporated only if such norms did not conflict with domestic law. The Novartis challenge is quite different. Secton 3(d) is already part of domestic law. Novartis seeks to invalidate existing domestic law (section 3(d)) as not complying with an international legislation i.e. TRIPS. Secondly, the right forum to moot such a challenge is the WTO dispute resolution panel and not a domestic court. Thirdly, given the sensitivity of the Novartis case and the international uproar, the Madras High Court is more likely to duck the issue , on the ground that it lacks jurisdictional competence.

If the Madras High Court were to however rule on this aspect, the decision is likely to go against Novartis i.e. the likely holding will be that section 3(d) is compatible with TRIPS, as it is an "obviousness" standard that member states are free to define in a manner consistent with their national policy. Section 3(d) does not "discriminate" against the pharmaceutical sector but only makes a "justified" differentiation, given the specificity of salt forms in the pharmaceutical sector i.e. other technology sectors such as mechanicals, electronics etc do not face “different salt form” kind of issues. It bears noting that US patent law encompasses a heightened utility requirement in the context of gene patents—i.e. in order to be patentable, a gene sequence has to demonstrate “substantial”, "specific" and "credible" utility. This came out of a desire to put a stop on the multitude of frivolous gene patent applications that cited the obvious utility of being a “mere probe”. These steps that cater to the specificities of technology sectors are perfectly legitimate exercises of national discretion by member states. And India is no different.

For similar reasons, section 3(d) is not likely to be struck down as an “arbitrary” standard under Art 14 of the Constitution of India.

ii) The IPAB's ruling on "patentability" will depend on whether or not they are convinced that Imatininb Mesylate was in fact 30% more "bio-available" than the other forms and therefore more “efficacious” under section 3(d). If this is not factually correct, then the IPAB will uphold the decision of the Controller rejecting the patent. Unfortunately, the order of the Controller in this regard is not very illuminating. It appears that the Controller was not convinced, as a matter of fact, that this salt form was, in fact, 30% more bio-available.

Insights on academic research in India (with a focus on Reservations)

Like others on the blog, I have been trying to come to grips with the decision of the Supreme Court to stay OBC quotas in the Ashoke Kumar Thakur case. The complexity of the issues involved is aggravated by the fact that there are several Supreme Court decisions that have at least some relevance to this case (quite a few of which are inconsistent with each other), as well as the fact that there isn't any recent academic work which tries to put the core issues in historical, legal and sociological perspective.

Which is why the assertions made in this article in today's Indian Express seem particularly relevant. Authored by Harsh Sethi, who is a consulting editor with the venerable 'Seminar,' the article highlights the problems with academic research in India with blunt precision. In particular the following struck me as particularly insightful:

"The end result is not only the paucity of quality research — exceptions apart — in the social sciences and humanities, but worse, ex-ante postulations, over-reliance on experiential insights and ideological biases marking public debate, often to the detriment of public policy. Without falling prey to xenophobia, it is time that we ask ourselves why so often some of the best analysis of Indian problems, both past and present, is available in the work of the foreign or non-resident Indian scholar.

Take Gujarat and the names that first come to mind are those of Jan Breman and David Hardiman. On the RSS, the most quoted book is still Brotherhood in Saffron by Walter Anderson and Sridhar Damle. In over three decades we have still to better it. The first book length work on the VHP is by Eva Tuti, a Swedish researcher. On Hindu nationalism, we turn to Christophe Jaffrelot; on Hindu-Muslim riots to Paul Brass, Steve Wilkinson and Ashutosh Varshney — all students of Myron Weiner, still remembered for his outstanding work on the child and the state in India and the ‘sons-of-the-soil’ movements. Even today, despite the intensity of polemical writing on reservations and quotas, it is Marc Gallanter (sic) and Thomas Weinskopf who are most cited. Surely, for all our claims as a knowledge super-power and our pride in our innate abilities, we Indians should have managed a better record.

... ... ...

Much of this is known as are the commonly advanced explanations by our teaching-researching community. They rue bad working conditions, poor pay and perks, exploitative managements, politicisation of institutions, and so on, as explanation, if not justification, for unsatisfactory performance. All this is in part true, as is the low public expenditure on higher education. But try and remember the last time unions of academics fought for pedagogic concerns (barring on the NCERT textbooks), to ensure that our libraries function better, for freedom to research and teach better, establish quality journals, strengthen refereeing and evaluation procedures. How often do we come across examples of involvement with student learning, mentoring younger researchers or translating key texts in non-English Indian languages. So why be surprised if there is considerable scepticism about the constant carping about work loads, salary scales and retirement benefits? Let’s face it, once tenured in public institutions, there is little demand for performance. More than a shortage of resources, far too many of our academics are lazy; they can get away without working.

As one of my senior colleagues once pointed out, the Indian intellectual environment is characterised by a skewed bi-modal distribution. Most academics do not have the wherewithal to engage in meaningful intellectual tasks. Those that do, once they have made their reputations or established their networks, are chased by a plethora of clients. For them it is a seller’s market. Quality invariably suffers(Emphasis added)."

One can add to the list of foreign scholars who have contributed to legal scholarship in India. For now, however, my focus is on academic works focusing on the law relating to reservations in India. To my knowledge, Marc Galanter has not focused on the more recent reservations jurisprudence of the Supreme Court of India, but his earlier work, especially his 1984 text, 'Competing Equalities: Law and the Backward Classes in India' remains one of the most authoritative works in the area of reservations law in India, and still is among the best places to start for anyone interested in the overall issue. Galanter has a website where some of his earlier pieces are available online, and the section on 'Caste and Untouchability' has some of his articles on reservation.

The problem that Sethi focuses on become clear when one looks at recent writing on reservations law in India. To cite but one example, take P. P. Vijayan's, "Reservation Policy and Judicial Activism" which was published in 2006. Based on the author's PhD research, the book has very useful charts on recent decisions of the Supreme Court on various aspects relating to reservations. However, the analytical quality of the book is woeful, and it does not provide any guidance on how one is to make sense of the often conflicting rulings handed down by the Supreme Court.

What is heartening is that academics from other disciplines seem to be focusing on the issue of reservations and producing solid academic work. During last year's debate, I found the articles by Yogendra Yadav and Satish Deshpande published in the Hindu particularly helpful in understanding the empirical context against which OBC quotas should be viewed. The parts of the article (which was eventually published as a two part series) are available here and here.

Hopefully, the debate over the case will spur more academic legal research on the issue of reservations in India. It is clear that policy-makers and judges in India will greatly benefit from such research.

SC's Stay of Mandal II: A Rejoinder

Mr.Vivek Reddy’s well thought-out response (carried in the comments section of my earlier post) requires a detailed critique. While I have posed certain specific questions to him, I am using this opportunity to further provoke him and other friends on the blog, so that there is more light on this controversial interim order.

1. Did the Court decide the case on merits?

Ans: My interest in the interim order is on how elaborate the Bench has been on the question of stay. It is pointless to “elaborately consider the contentions of the petitioners and the government” and then conclude in paragraph 18 that “the issues need deeper consideration in the background of their legal and social importance.”
Now let us consider how the Court considered the stay issue. Their only concern is this: “What may have been relevant in 1931 Census may have some relevance but cannot be the determinative factor.” The Central Government’s counter-affidavit shows how flawed this concern is. The 1931 Census was not the basis for identification of OBC castes. The GOI’s OBC lists include castes which are common to both the Mandal and the States’ lists. In other words, Mandal list alone is not sufficient. In effect, it is the states’ lists which have been accepted by the Central Govt. The states’ lists have undergone the tests of judicial scrutiny in many cases, and have not been struck down for want of uptodate data.
The court prima facie assumes that inclusion of castes in the OBC list has been mechanical, and done without adequate relevant data. This is a wrong assumption. The inclusion of castes has been going on for many years in various States, on a variety of criteria. The Mandal Commission followed its own criteria, (not on the basis of 1931 census) including representation from the claimant castes, field visits by the Members, and the States’ lists. Now, it is possible that some castes in the lists ceased to be socially and educationally backward, and there could have been mistakes and imperfections while including certain castes, as it could happen in a gigantic exercise like this. Even if there is a caste census, it could happen.
That is why the National Commission for Backward Classes Act, 1993 set up in pursuance of the Indra Sawhney judgment, provides a mechanism to rectify such aberrations. Anyone aggrieved with these lists, could approach the Commission stating the facts, and the nature of the complaint, with documentary evidence, if any for inclusion or exclusion. The Commission’s advice in this regard is binding on the Government. For this, one need not wait for 10 years. The Act also envisages once in a 10-years revision of the lists. This was complied with in 2003, when the Commission advised the Government after a revision, that there was no scope for excluding any classes from the list as the reservation was only introduced very recently after the implementation in services in 1993. In the case of educational institutions, it had not even started. So the question of revision did not arise. Strangely, the Court did not at all fault the petitioners for not using this grievance redressal mechanism under the NCBC Act. All these are to be found in the counter-argument. But for strange reasons, the Court did not address these issues at all in its judgment. Is it a case of selective consideration “on merits”?
I am unable to convince myself that it is a case of the Court hearing it on merits. Even if it had heard it on merits, I am unable to understand why the questions of balance of convenience and presumption of constitutionality are irrelevant. “Elaborate” order, ipso facto, cannot suggest that it was heard on merits. Did the Court seriously go into the merits or non-merits of stay? Instead, it raised extraneous issues like data collection and creamy layer, (on which it was not convinced itself, as it admitted there is need for detailed hearing), and on the basis of their superficial understanding (not even is there any prima facie finding), it proceeds to grant a partial stay.

2. Is there data to back up the OBC reservation?

Ans: Instead of asking the Government this question, the Court must have asked the petitioners, to show that specific inclusions of castes in the OBC list were without any data, and this was not seriously examined by the NCBC, when they complained to it. The petitioners are apparently lazy to carry out such an exercise themselves, and therefore, suggested a fresh survey. The Court cites ASG as saying in a different context that there is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism. The Court does not want to admit that such an acceptable mechanism already exists in the form of the NCBC, which is entrusted with the task of revision, if necessary. The NCBC only found this revision exercise premature in 2003. If someone is aggrieved with this decision, they can challenge it, rebut it by proving that many castes in the OBC list had ceased to be socially and educationally backward. Again, the court has only come to the aid of the petitioners’ lazyness. On the contrary, imagine what could happen if the GOI follows the suggestion, carries out a survey, periodically identifies more backward citizens, only to show that the number of SEBC requiring reservation is much more than what was earlier believed to be. The Court is only opening a Pandora’s Box.
Here, I would like to correct Mr.Vivek Reddy. The court did not say that the Act is unconstitutional as of today. It is not even sure of this; that is why it has adjourned the case to August for a detailed hearing, clearly showing that its elaborate hearing for the interim stay is not at all sufficient. If the government comes up with fresh evidence, and the Court upholds the Act, will it then compensate the OBCs who lost one academic year, because of its faulty stay of S.6 of the Act?

3. The illogical data logic:

My point in raising the issue of governance coming to a standstill is to show how illogical the requirement of data collection is. Will anyone suggest data collection to show that the SCs and STs continue to be deprived or that the castes listed as SCs and STs still fulfil the criteria for their inclusion? After all, if things can change in the case of SCBCs, it could happen in the case of SCs and STs also. I understand SCs and STs suffer from centuries of historical injustice, and therefore, must be treated on a different plane. But the line of argument can be the same, without overlooking this essential difference. Why should we assume that the Govt. did not satisfy any objective social criterion before treating a caste as backward. I agree specific instances of abuse of power can always be exposed and there is a legitimate remedy and a process under the NCBC Act. But why should we throw the baby with the bathwater?
To put it differently, can Mr.Vivek Reddy as an example, demonstrate what sort of hard data could be convincing to show that the currently listed OBCs are SEBCs. The very inclusion of these castes in the lists carries with it a history of social and educational backwardness – if not a history of discrimination and deprivation as the SCs and STs – as documented by their representations to the Government, demands etc. I fail to understand how such data could be meaningful and convincing through data collection organized in terms of national surveys or censuses. Considering the backwardness and poverty level, it would not be surprising if the people fudge facts, or make spurious claims about their backwardness. The result would not only be confusing, but disastrous. Just one instance will explain. The reservations were first introduced in 1902 and 1921 respectively in princely states of Kolhapur and Mysore, in response to the local movements against existing caste based monopoly. Those princely states did not go about collecting data, but responded immediately to the demands, in order to prevent social unrest. Similarly, if the modern-day governments instinctively, and by way of impulse and formal and informal studies consider a caste as backward, such consideration can be largely respected, with due regard to a few exceptions, which can be tackled through the NCBC Act. It is naïve to believe that large-scale surveys, which the Court has in mind, would be able to help us have fool-proof OBC lists.
Mr.Reddy himself agrees that the question of overall OBC population is not directly relevant when it comes to educational institutions. Does he not agree that the Court is essentially mistaken when it cites different figures of OBC population, as given by different agencies to underline its data-quest? In my view, surveys conducted on a large scale are not the answer to determine whether a caste is SEBC. The answer has to be found in anthropology and sociology, not in statistics.

4. Why I feel the ‘stay’ is unjustfied?

Ans: I would like to draw attention to an important case decided in 2000 by the Supreme Court. It is Bhavesh D. Parish & Others v. Union of India and Another. In this case, the Court makes an important distinction between statutes having a bearing on economic policy and those which do not similarly impinge on economic policy. It cites the Supreme Court’s observations in R. K. Garg v. Union of India 1982 (1) SCR 947 at 969 to support this distinction. It says: “When considering an application for staying the operation of a piece of legislation, and that to pertaining to economic reform or change then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in staying the applicability of the same. Merely because a statute comes up for
examination and some arguablepoint is raised, which persuades the courts to consider the controversy,the legislative will should not normally be put under suspension pending such consideration. It is now well-settled that there is always apresumption in favour of the constitutional validity of any legislation,unless the same is set-aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the
interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itself. While the courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to beunconstitutional. It is, therefore, necessary to sound a word of cautionagainst intervening at the interlocutory stage in matters of economicreforms and fiscal
statutes.”

In my view, this special treatment extended to economic legislations by the Supreme Court is not at all convincing. But I would tend to believe that the logic underlying this judgment applies with equal force to the Central Educational Institutions (Reservation in Admission) Act, 2007.

To sum up, did the SC conclude that S.6 of the C.E.I.(RA) Act, 2007 was manifestly unjust and glaringly unconstitutional? The court was not sure, that was why it has adjourned the case for a detailed hearing. Hence, the stay was apparently unjustified.

ACADEMICS AND THEIR IMPACT ON THE JUDICIARY

Just came across Adam Liptak's interesting piece titled "When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant" in the New York Times.

Liptak captures an interesting judicial perspective on how relevant US law review articles really are. Very important lessons here, particularly for Indian academics that seek to make impact on the judiciary. Unfortunately, the NY Times article can be accessed only by a paid subscriber, but here are the excerpts. I particularly like the reference to blogs and their growing influence. Also, Justice Reena Raggi's quip: "If the academy does want to change the world, "it does
need to be part of the world."

The note also speaks about the growing participation of academics in litigation—something that we may not see in India, owing to the archaic Bar Council rule that academics cannot appear in court. I’m hopeful however that this does not stay for long and that academics are given an opportunity to be “a part of the real world”. Does anyone have suggestions for how we can go about getting them to change this rule? Anyway, here goes:

"I haven't opened up a law review in years," said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. "No one speaks of them. No one relies on them."

In a cheerfully dismissive presentation, Judge Jacobs and six of his colleagues on the United States Court of Appeals for the Second Circuit said in a lecture hall jammed with law professors at the Benjamin N. Cardozo School of Law this month that their scholarship no longer had any impact on the courts.

.....Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions * which is to say the practice of law * is beneath them.

The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.


The law professors at the conference said they loved being cited, even negatively. Paul M. Shupack, who teaches contracts and commercial law at Cardozo, reminisced about having his work on lien priorities mentioned in a footnote to a decision of the Second Circuit by Judge Henry J. Friendly in 1984. "Judge Friendly cited it and said our position was alarming," Professor Shupack said at the conference. "I was happy he had read it."

Michael C. Dorf, a law professor at Columbia, had a similar reaction to being cited dismissively in this month's decision striking down parts of the District of
Columbia's gun control law. On the one hand, Professor Dorf said, "there's no such thing as bad publicity." On the other, he said it was vexing to see his article
caricatured rather than engaged.

..."The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable," Professor Dorf said.

There are other reasons for the diminished influence of law reviews. One is the
emergence of electronic databases.

"Before search engines," said Marci A. Hamilton, a law professor at Cardozo, "if you wanted to figure out what all the cases on a given topic said, you went to a law review." Now you punch some words into Lexis or Westlaw.

But probably not. Even when courts do cite law review articles, Judge Robert D. Sack said at Cardozo, their motives are not always pure. "Judges use them like drunks use lampposts,"
Judge Sack said, "more for support than for illumination."

The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.

"If the academy does want to change the world," Judge Reena Raggi said, "it does need to be part of the world."

To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.

Law reviews, by contrast, feel as ancient as telegrams, but slower."

A reluctant 'stay' on the basis of flawed reasoning

The language of the Supreme Court’s stay of section 6 of the Central Educational Institutions (Reservations in Admissions) Act, 2006 makes for strange reading. In the last paragraph, it says: “In the background of what has been explained above, it would be desirable to keep in hold the operation of the Act so far as it relates to Section 6 thereof for the OBCs category only.” There is no direction to the Government to do so. As happened in the case of M.Nagaraj, which led to considerable ambiguity whether the SC wanted extension of creamy layer principle to SC, and STs, the latest ‘stay’ is bound to cause certain misgivings, with demands pouring in from the political parties and affected sections of people that the Government should not withdraw from implementing the OBC reservations despite the Supreme Court’s two-Judge Bench’s “desire”. Curiously, the Bench cites the same ambiguous paragraph in the M.Nagaraj judgment to justify its stay.
There is an inescapable feeling whether the Court has reduced the controversy to a civil dispute, by granting a stay. Whatever has happened to the presumption of legality of legislative Acts? Instead of asking the petitioners to come out with facts and data to challenge this legislative presumption, the Court has swung the other way around, and has asked the Government to explain and defend itself, and w hen it did, it expressed dissatisfaction, by granting a partial stay. If the Bench had an open mind, the stay need not have been granted. After all, the balance of convenience was against the stay: the general candidates had nothing to lose, as their existing quota of seats would be protected under the Act, whereas the OBC candidates would have lost one academic year because of the stay of Section 6, if later the Court found the entire Act valid, after detailed hearing of the parties. In Mandal I, what was stayed was executive Memorandum, till it was found valid in the Indra Sahney case. Staying the operation of the Act is much more serious, but the Court has not at all justified the stay in the judgment. What happens if the Government is asked to provide survey-based data for each and every progressive step it takes, on the basis of its instinctive, impressionistic assessment, where survey-based data collection may have no relevance at all. Would not governance come to a standstill?
The Court assumes that the 1931 Census is the determinative factor, and voices its disapproval. This, however, is a flawed assumption. The Court selectively quotes from Indra Sawhney, leaving out those paragraphs of that judgment which dealt with the validity of the data relied upon for arriving at the 27 per cent. The Mandal Commission arrived at 27 per cent reservation based on multiple procedures in the contemporaneous context. (paragraph 16 of the Judg.)
There is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism, says the court in paragraph 19. Such a mechanism already exists for this purpose: Section 11 of the National Commission for Backward Classes Act, 1993 –as dealt with in paragraph 11 of the Judgment- provides for it. The Act also provides for a complaints redressal mechanism, wherein, if anyone is aggrieved that a particular caste is no longer backward, it could bring this to the attention of the Commission, with proof, and the Commission’s recommendation in this regard is binding on the Government. The Court has not answered the criticism that a survey of the OBC population is unnecessary to arrive at the percentage of reservation. All surveys clearly reveal that the population is more than 27 per cent : Mandal put it at 52, and others may be less.
Lastly, the Bench admits that the UOI’s claim that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) has to be examined in detail, to see whether it is based on sound foundation. If that is so, why grant a stay of Section 6 of the Act on the basis of its wisdom that creamy layer is a necessary bargain between the competing ends of caste based reservations and the principle of secularism – as the plea of the petitioners for the stay of the Act is not at all relevant to the question of whether creamy layer is a necessary bargain or not.

Long Live Vote Bank Politics!: A Polemics

The Supreme Court’s interim judgment in the Ashoka Kumar Thakur vs. Union of India and Ors. granting a stay on the OBC reservations in Central Educational Institutions requires a careful study and I intend to do it in the coming days. Meanwhile, I am looking forward to reading what my colleagues on the blog would say, after they read it, and reserve my comments till then. However, certain statements made in the petitions challenging the Act are disturbing. They have said that the OBC reservations –as they exist now without a valid “data base” - would further exacerbate the caste divisions in the society, and that the political class is perpetuating it for the sake of vote-bank politics.

A partial stay of the Act by the two-Judge Bench on the basis of this petition, therefore, is bound to cause concern. The Arijit Pasayat-Lokeshwar Singh Panta Bench which gave the interim partial stay has unwittingly contributed to the general distrust or cynicism of the political class by the citizens. This has ominous portents for the democracy. The immediate impact could be seen in the heckling of the human resource development minister Arjun Singh by anti-reservationists at the JNU.
It is indeed debatable whether reservations widen caste divisions. That apart, what exactly is “vote-bank politics,” that has acquired a pejorative meaning all these years? Is it cultivating a group or class of voters, and appeasing them, so that that class votes enbloc to a political party which has seemingly benefited them? Is there any evidence of voters of a caste voting together to a party because it is perceived to have extended quota to them?
Since all parties endorse the quota policy, the perception that one party stands to gain more from the policy than the others is not at all convincing. Look at the Central Educational Institutions Act 2006 , section 6 of which has been stayed by the Court. It was passed unanimously by all the parties in Parliament. The Government brought forward such a Bill, because all parties had urged it to bring forward such a Bill. Thus neither the Government or its allies nor the Opposition could claim credit for the Act, and translate them in terms of votes.
So, the Supreme Court -which prima facie finds substance in petitioners' claim -must be really livid at the way all parties equally eye the vote-bank represented by the beneficiaries of the Act.
Is it wrong in a democracy to woo those sections of the population perceived to be downtrodden, and historically discriminated? Is it wrong to devise Government’s policies, and draft laws to ameliorate the lives of these sections – even if they vote different parties, on the basis of their perceived degree of commitment to their welfare? Looked at from this sense, does not vote-bank politics promote the accountability of the political class, that it is always on tenterhooks, as to their commitment or the perceived commitment to the welfare of the underprivileged. So next time, when anyone blames the political class for its vote-bank politics, it should take it as a compliment, rather than as an affront.

But the underlying signals from the Bench, are worrying. People’s confidence in the efficacy of institutions other than the Judiciary, could be shaken. This universal cynicism and the complete distrust of the legislature and the people’s representatives might become a norm, following the Judgment, and this could lead to all-round defiance and lawlessness, leading to the Judiciary strangely coming to the defence of such law-breakers, (after all, how would you describe the anti-reservationists, who at the heat of their agitation, even used racist arguments against all reservations, including that of the SC and ST, and refused to recognize even Constitutional imperatives, and Judicial pronouncements) as opposed to the law-makers.