I have had the opportunity to go through the notes taken when the Chief Justice of India read out the summary on April 10, while delivering the Mandal II Judgment. The original version as read out by the CJI is still not in the public domain, but this notes can be relied upon for raising some valid questions.
After the four judgments were read out by the Judges, the Chief Justice read out a summary of findings of the Court so that there is no confusion. He read out as follows:-
*The 93rd Amendment Act does not violate the basic structure so far as it relates to aided educational institutions. As far as private unaided educational institutions are concerned, 4 out of 5 Judges have left the question open while Justice Bhandari has held that it is violative of the basic structure.
*The 2006 Act is constitutionally valid subject to exclusion of creamy layer.
*The quantum of 27% reservation for OBCs is not illegal.
*The 2006 Act is not illegal merely because time limit is not prescribed for reservation.
*There should be a review of the lists of SEBC every 5 years.
1.The direction for a review of the lists of SEBC every five years: Does it run counter to the direction in Indra Sawhney 1 which was for review/revision every 10 years? The Government appears confused on this. At the same time, it should be noted that the Bench rejected the plea to set aside the Act merely because the lists were not revised by the Government, even after 10 years. In 2003, when the time for review came after 10 years of notification of the lists, the Government consulted the NCBC, and the latter conveyed the views of the States that revision was not required at that stage. The Bench did not deal with how the review should be done, and what happens if the review is not to the satisfaction of the Court.
2. The question of graduation being a factor in identifying backwardness of castes was dealt by Justice Pasayat. But such a factor is already one of the recognised criteria with the NCBC, to determine backwardness. Therefore, Justice Pasayat's suggestion has been put forward as if it was earlier ignored by the NCBC. This forms part of the summary of Justice Pasayat's findings which says: "Graduation or professional qualification shall be the standard test for measuring backwardness,", but this is missing from the overall summary prepared by the Chief Justice. The summary of Justice Bhandari's findings (as read out in the Court) is equally silent on his opinion that once a candidate graduates from a uiversity, he/she is educationally forward and is ineligible for special benefits under Article 15(5) for post-graduate and any further studies thereafter.
3. Justice Bhandari suggested to the Government to adopt economic criterion to identify backwardness, after he said he was "compelled" to agree to caste being a criterion. Justice Pasayat also said, to strike a constitutional balance it is necessary and desirable to ear-mark certain percentage of seats out of permissible limit of 27 per cent for "socially and economically backward classes". This phrase is probably used for the first time in the context of reservations. Justice Pasayat says in the summary read out in the Court: Some seats of 27% seats for OBCs should go to socially and economically backward classes after 10 years. Taken together, do the majority Judges approve of economic criterion? Will it be binding? But it doesn't form part of the CJI's summary. And it also runs counter to Indra Sawhney1 which had rejected economic criteria adopted by the Narasimha Rao Government.
4. I understand some lawyers had suggested that Justice Bhandari's view that that part of Article 15(5) dealing with reservations in private educational institutions would be severed will be binding, as the other four Judges left it open. The summary read out by the Chief Justice in the open court says: "The 93rd Amendment Act does not violate the basic structure so far as it relates to aided educational institutions. As far as private unaided educational institutions are concerned, 4 out of 5 Judges have left the question open while Justice Bhandari has held that it is violative of the basic structure." Is the question of binding nature of Justice Bhandari's decision also open? The CJI's summary is silent on this.
This is how Justice Bhandari's opinion, as read out in the Open court goes: "The 93rd Amendment Act in so far as it relates to private educational institutions distorts basic structure as it abrogates Article 19(1)(g). As far as State and aided institutions are concerned, Article 15(5) is valid. Hence I sever the portion of Article 15(5) in so far as it relates to private unaided educational institutions." Of course, it is reasonable to suggest that majority Judges want the question to be left open, but I don't know whether there is any case law which suggests otherwise.