Wednesday, April 18, 2007

New Twist to Mandal II: GOI's Application for vacation of stay reveals interesting facts

The SC’s Pasayat-Panta Bench has clarified that the March 29 interim order was indeed a stay of S.6 of the Central Educational Instituitons (Reservation in Admission) Act, 2006 with regard to OBCs, and not an advice. It has posted for hearing the application for vacation of stay filed by the Central Government to April 23. The Government of India’s application – while reiterating many of the claims made in the counter-affidavits – reveals the factual inaccuracies in the Interim order. Specifically, the statements attributed by the Bench to the Additional Solicitor General, Gopal Subramanium have been denied. The statement that ‘there is need for periodical identification of backward citizens and that for this purpose the need for survey of entire population on the basis of an acceptable mechanism is needed’ has been described as an inaccurate attribution by the Bench. The submission of the ASG was that a head count census was, in fact, not a possible or feasible option. As a matter of fact, what was further submitted by the ASG was that while as a general principle it was unexceptionable that there must be cogent data, in the present case, all requisite data is already available with the Government of India and the manner of collection of the said data and the methodology adopted for arriving at various figures had already been approved by this Hon’ble Court in Indra Sawhney.
The Government has also clarified that the staggering of the implementation of the 2006 Act was permitted in the statute, not on account of any infirmity in the data available with regard to the OBC population but having regard to financial, physical or academic limitations, if any, or in order to maintain the standards of education, if such limitation or difficulty was expressed by any institution. It was submitted that there was no statement made by the ASG that the staggered implementation of the Act was necessitated on account of any shortcoming in the data.
On the question of stay, the Government referred to the same case, which I had cited in one of my previous posts, but added that the present Act under challenge could be considered as a socio-economic legislation, if a distinction is sought to be raised between economic and non-economic ones to apply the principle laid down in that case. (in Bhavesh D. Parish v. Union of India, [(2000) 5 SCC 471] .
The Application makes one more point, which the discussion in this blog did not anticipate – that the Judiciary cannot examine the materials relied upon by Parliament for the purpose of legislation. It said: "the interim order dated March 29, 2007 appears to sustain a challenge which invites this Hon’ble Court to enquire into whether Parliament, while exercising its primary function, that of legislating, had material before it to support the enacting of the 2006 Act. The interim order dated March 29, 2007 further appears to sustain a challenge which seeks to scrutinize the adequacy or otherwise of the material underlying the 2006 Act. It is most respectfully submitted that such an inquiry departs from the well established principles in regard to judicial review of legislation".
The Application has also missed an opportunity to correct the wrong attribution of a paragraph (with a contrary inference) to Indra Sawhney, rather than to Justice O.Chinnappa Reddy in an earlier Judgment, (K.C.Vasanth Kumar) in a different context, which I have referred to in an earlier post. This paragraph in the Interim order cast aspersions on the OBCs, saying many of them queue up to claim the OBC status, without justification.
The outcome of the hearing on April 23, therefore, will be watched with interest.
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