Friday, April 27, 2007

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?
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