The discussion on K.Krishna Murthy case is perhaps a fitting tribute to the memory of the former Prime Minister, V.P.Singh, who passed away yesterday. Sudhir Krishnaswamy's piece raised the same questions posed before the Constitution Bench which heard this matter, but it appeared to me, that the author, perhaps, was not aware of the response of the ASG, Gopal Subramanium to these questions.
As I have a copy of ASG's written submissions on the matter, I have tried to seek answers to some of Sudhir's questions, in the light of ASG's arguments. These answers should not suggest that I agree with the ASG on this issue; I have an open mind, and I look forward to the likely debate it may provoke.
1. The right to vote or elect candidates, and the right to contest elections as a candidate, are not fundamental rights, but statutory rights - subject to the provisions of the statute.
2. 73rd and 74th Amendment Acts advance the notion of substantive equality.
3. The amendments do not address a conflict of rights, but rather - a justice of rights. The amendments are a testimony to constitutionalism as modifying the classic liberal human rights model to the discipline of a 'politically inclusive, adjudicative, negotiated constitutional secularism'.
4. Reservation in the post of Chairperson is essential, as the Chairperson discharges important functions and exercises some control over the functioning of the panchayat institution. Further, an enabling provision is made in the case of BCs, which permits States to make provisions for reservation of seats in BCs. Empirical literature suggests that the experiment of reservation in panchayats and local bodies has been extremely successful. These reservations must be viewed in the context of empowering weaker sections by ensuring their participation and representation in local governance.
5. For the purposes of Parts IX and IXA of the Constitution, the term 'backward classes' may be interpreted as socially and educationally backward classes, as understood in Indira Sawhney and subsequent decisions.
6. The inquiry whether equality has been achieved no longer ends with numerical equality; rather the equality clause has been held to require resort to a standard of proportional equality which requires the State, in framing legislation, to take into account the private inequalities of wealth, of education and other circumstances. (J.Mathew in State of Kerala vs. N.M.Thomas).
The full text of the ASG's submission is here.
ADDENDA: The following summary of the oral arguments may be of use:
Justice Raveendran: The objection was about vertical reservation. Women's Reservation was a fringe issue. Panchayat Raj is not an issue. Thrust of argument (of Mr.Rama Jois) was on BCs and the Chairperson reservation. As the BCs already have the major share, what is the purpose of quota for BCs?
ASG: It is not anybody's case that the BCs did not exist when this Amendment was passed. Such an averment is not there. 17 States have enacted laws under Article 243D(6). That Mandal did not recommend such a reservation cannot be a ground to attack these amendments. Mandal was a report, it was not exhaustive. I don't think it would lead to a clamour.
Rama Jois: The A.P.Assembly has passed a resolution urging OBC quota in Assembly elections.
ASG: Let's cross the bridge when it comes.
Justice Raveendran: Empirical data was available for SC/ST/WOMEN when Parliament/assembly reservation was made. No such data was available in the case of OBC quota in local bodies. We don't want to enter areas where there is no contest at all. Mandal Commision found that in political arena, OBCs did not require reservation.
ASG: The fact that BCs exist is a justification.
Justice Raveendran: Were BCs prevented from contesting in PR, so that they required protection. For women, SCs and STs, it could be said yes,they were prevented and discouraged from contesting, so it was necessary.
Justice Sathasivam: In the case of notification by Karnataka, (making reservations for OBCs in local bodies), there are no objects and reasons.
ASG: Right to vote is a creation of statute, it could be tailored, based on qualifications. If reservation is needed, and given, it leads to equality.
Justice Raveendran: Where reservation is not needed, but provided, it becomes a divisive force.
ASG: Constitution uses conscious expression to enable identification. Certain groups are to be treated disadvantaged. Apprehension of disintegration will vanish. Affirmative Action in education and employment is not exhaustive to achieve equality. We truncate the essential question. Do such BCs need integration with active State's intervention? Goal of Part IX, Article 15(4) and Article 243D(6) are same, and all intend to promote equality. Purpose of Part IX is to promote Article 14. Is there a need? Yes, as long as BCs exist, and require protection under Article 14, it is a self-evident basis for classification.
Justice Raveendran: Rama Jois' challenge was against the State Legislations (under Article 243D(6)), and not against the Constitutional Amendment.
ASG: Constitutional Amendment must be seen not in the light of State legislations. We treat an amendment by itself. Political equality is essential to ensure living condition, and dignity of people; reservation for them is justified. This amendment is not liked because it marks a silent revolution, people are empowered. Earlier BCs were not allowed to chair Panchayat meetings. It is a change. The amendment intensifies, and strengthens the basic structure. Take Article 330. It is different from Part III. A.330 is an additional protection as a means to a possible end. If BCs need special provision in Articles 15 and 16, they need Part IX for participation. The structure of governance is bigger than right to vote. Part IX aims at equalisation of status, not equalisation of opportunity. Status is not defined in the Constitution. Caste, when it is subjected to disabilities of social class, becomes a class.
(A somewhat similar summary can be found here)