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.
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.