Tuesday, November 25, 2008

Dr.Rajeev Dhavan's submissions in the K.Krishna Murthy case

Dr.Rajeev Dhavan completed his submissions as the counsel for the respondent State of Bihar before the Constitution Bench in the K.Krishna Murthy case. LAOT thanks him for sharing with us a copy of his written submissions. Here, I have tried to summarise his submissions.

Recap: The real thrust of the petitioners was reservations for OBCs in Panchayat institutions are invalid; and reservations for Chairpersons by rotation would operate only to choke off the rights of the general candidates to Chairperson posts.

Salient Points

1. If the petitioners' challenge succeeds, then it would not just strike down Articles 243D(2) to (6) and 243T(2) and (6) or parts thereof, but it would involve severability and a rewriting of the Articles to create something not intended by Parliament.

2. The basic structure doctrine cannot be the basis of striking down an ordinary statute. To apply the basic structure doctrine directly to legislations and executive actions would amount to rewriting the balance of power in the Constitution and surrender it to a vague and wandering 'jurisdiction' unsuited for that purpose. In the Indira Gandhi's case (1975), the amendments to the R.P.Act, 1951 were located in the 9th Schedule and were thus immunized. This must not be modified in the light of Coelho (2007).

3. Enabling clauses in Articles 243D and 243T are by themselves not invalid as violations of the basic structure (on the nagraj-Coelho principle).

4. 73d and 74th Amendments do not destroy the identity, and may indeed fulfil the identity test, evolved in Nagaraj.

5. Potential width of a provision to interfere with the basic structure will not be a reason for assuming a violation of the basic structure.

6. 50% cap on quota is taken from education and civil service jurisprudence and cannot be applied blindly to election law.

7.Special empowerment in legislative and Panchayat bodies is very much a part of the principles of democracy and equality.

8. Affirmative action is a part of and not an exception to equality.

9. This case deals with grass root democracy so as to empower the discriminated against, disadvantaged and disemowered at the very level where such empowerment at Panchayat level is necessary.

10. The meaning of backward clas in Article 243D(6) and 15(4) is the same, with the emphasis on social backwardness.

4 comments:

Anonymous said...

Will limit my comments to one point made by Dr. Dhawan.

2. The basic structure doctrine cannot be the basis of striking down an ordinary statute. To apply the basic structure doctrine directly to legislations and executive actions would amount to rewriting the balance of power in the Constitution and surrender it to a vague and wandering 'jurisdiction' unsuited for that purpose.

I entirely agree. Many people are unaware that the Palkhivala's arguments in Kesavananda (and this does not come from across exceedingly clear from the judgment) did rely upon the meaning of the word "amend" in Article 368. He argued that "amend" does not include "change so as to nullify the character of". Also, a few earlier observations by Justices Hidayatullah and Mudholkar were based on the consideration of whether or not some part of the constitution would be more important than the others.

So we see that the genesis of the BS doctrine was based on the concept of constitutional amendment itself.

Regarding Coelhe, I think that Coelho must be taken to mean that once a law is placed into the Ninth, it for all purposes is tantamount to a constitutional amendment. Therefore it can be challenged under BS. To remain doctrinally sound, the observations in Coelho must not be interpreted to applying to all laws in general. The better view o take is,n my opinion, that laws in the 9th do not violate the BS, but the AMENDMENT which places the laws in the 9th is the one which violates BS. So BS should be used to lift the veil of the 9th, and then the law must be challenged under the provisions of the Constitution.


I anticipate at last the following counters.

1. "You rest your argument too much on the meaning of the word amend" - The basis strcture doctrine hinges on a correct understanding of amend. That is the legal basis of the doctrine.

2. "Words do not matter" - Really!? Sorry, they do. In any event, what is the other doctrinal justification?

3. "If an amendment can be challenged under a higher threshold, why not a law?" - this is a very important argument. But in my opinion, BS is not a "threshold" but a technique to bring certain actions within the scope of review.


I am sure these will be unpopular arguments - waiting to see how unpopular!

ravi srinivas said...

I am not convinced by his arguments.Were OBCS underrepresented in civic bodies and legislatures?.
It would be interesting to look whether this issue figured in the Constitutional Assembly debates.

Dilip said...

243D(6) refers simply to 'backward class' which is closer to 16(4) than 15(4) but the caveat that reservation only apply to those not adequately represented found in 16(4) is missing from it. The objective here seems to be to ensure proportional representation regardless of their numbers in these civic bodies ex ante. In that sense, it seems to be different from both Art. 15 and 16.

Does anyone know if the creamy layer applies here?

pragya said...

does this mean that affirmative action under article 16(4)forma a part of the basic structure??