Saturday, April 07, 2007

SC's Stay on Mandal II: A response to Mr.Vivek Reddy

At the outset, let me welcome Mr.Vivek Reddy to our lively blog. I look forward to reading similar spirited debates, which the SC's Mandal decision has provoked in our blog.
To begin with, I must admit that there are certain areas of disagreement. Mr.Reddy starts with the premise that the objective of quotas is to ensure freedom of opportunity for social and economic advancement. Reservation is group-oriented, not individual oriented. Many Benches of the Supreme Court have upheld this view. One consequence of this view is that we can't hope to empower all the individuals. There may be individuals in a group, who are not beneficiaries of this group-based reservation, but this is inevitable.
Secondly, I have not opposed judicial review of reservation. My only ground for opposing the latest stay of the two-Judge Bench is that it is not based on any reasoning at all.
Thirdly, Mr.Reddy says Constitution commands creation of a casteless society. I don't think his belief is correct. Constitution only guarantees a right against caste-based discrimination. Caste is one of the prohibited grounds of discrimination along with others, such as sex, religion, region etc. We cannot, therefore, conclude that Constitution commands a sexless, a religion-less society. The word `only' has to be noticed in Equality Articles. It prohibites discrimination on the basis of only caste, sex, etc. Courts have held that if you combine one of these prohibited grounds along with other non-prohibited grounds, then the discrimination resorted to is valid. It is now fairly clear that Mandal List/State Lists/ the Govt. of India's lists are not based only on caste factor, but is based on a multiple criteria. The Mandal Commission for instance, evolved a multiple criteria, and gave different weightage to each criteria, and whichever caste secured 50 per cent weightage, then it was put in the list. Caste was considered as a unit, along with others, and this has been found valid in the Indra Sawhney judgment.
I admit my view that "if the modern-day governments instinctively, and by way of impulse and formal and informal studies consider a caste as backward, such consideration can be largely respected" is not tenable. I stand corrected, having found Mr.Reddy's arguments very persuasive.
His elaboration of Justice Jeevan Reddy's qualifications to identify backward classes is helpful. There are two stages. One is identification, and then revision. Indra Sawhney, no doubt, elaborates how a backward class can be identified. And it has approved the way the Mandal commission did it. The once-in-10 years survey is relevant for revision. Now, can the NCBC be faulted for its stand that a survey-based revision within 10 years is unlikely to result in removal of any class from the list? Still, I agree that there is a need to revamp the NCBC and even a direction could be issued to it by the Court to follow the guidelines if any in the Indra Sawhney judgment with regard to revision. The List was found valid in 1992, and the implementation started in 1993 with regard to public services. How could there have been so many classes within 10 years who might have become ineligible to be in the list in terms of SEBC criteria? It is in this context, I referred to the government's instinctive feeling that a survey or a head-count may not be necessary to arrive at a conclusion which is obvious: that there may not be any caste which deserved to be removed from the list within the course of 10 years. Still, if the petitioners have any reason to challenge it, they could have approached the NCBC, with their complaint. They have not done so.
I am not sure -as Mr.Reddy thinks - that the Indra Sahney judgment requires the Government to undertake a fresh identification of SEBCs (as compared to revision for the purpose of exclusion and inclusion) on the basis of a head-count or a survey, however imperfect it may be. May be I need to study the relevant parts of the judgment, to convince myself. I am in agreement that a fresh survey, even similar to what the Mandal Commission had undertaken - could be initiated, but till such time, the existing lists need not be abandoned, as it would amount to depriving the benefits of the really needy classes. The 2-Judge Bench, the petitioners, and Mr.Reddy all seem to believe that much water has flown over the 10-15 years, that some communities, who do not fulfil any criteria of SEBC, are enjoying the benefits under the list. This assumption, in my view, has to be tested, by taking some representative castes, like Vokkaligas, for instance, and assess their relative backwardness. I have my reservations about the merits of doing a survey of the population, because it brings the proportionality element. Supposing if a State is predominantly illiterate, and socially backward, would not the proportionality element result in pruning of the list of OBCs in that state to unacceptable and even unconvincing level?
I agree that under the presumption of constitutionality principle, the burden of proof shifts to the Government, once the petitioner begins to show that the statute is unconstitutional. In this case, the petitioners have made only empty assertions and allegations. There is not even a prima facie ground. I did not say that the petitioners must prove absence of data. The Government has presented to the Court in its counter-affidavits why it thinks the data behind the OBC lists are objective material, citing Justice Pandian's judgment in the Indra Sawhney, which considered similar objections against the data.
The petitioners' main ground of attack is that 52 per cent OBC population figure is not credible. But they are not saying whether the 27 per cent quota is excessive or less. I agree with Mr.Reddy, that whatever percentage of SEBC population, they deserve protection. Therefore, if a 27 per cent quota is fixed, in view of the 50 per cent ceiling, why should there be any objection from the petitioners?
There are some indications that the two-Judge Bench was confused, and this led to lack of objectivity. In paragraph 31, they say that the lists relatable to Article 16(4) form the foundational base for Article 15(5), the source of the latest law. Now, both the Bench and the petitioners seem to challenge the credibility of the lists relatable to 16(4), even though Indra Sawhney Bench had upheld those lists. By entertaining the petitions against these lists, is not the two-Judge Bench shaking the basis of the 16(4) reservations also? If the lists are all right for 16(4), then the SC appears to say, it has no problems if creamy layer is excluded under 15(5), if the same lists are adopted under the Act being challenged. Therefore, SC would not appear to question the credibility of the lists as such. As far as the creamy layer also, the Bench would like to examine the Govt.'s stand in detail. It is in this conceptual confusion, and lack of self-confidence that it could stay the operation of Section 6, (many would deem it as overruling the Indra Sawhney judgment by a smaller bench), the Bench has perhaps found it desirable to keep S.6 in hold. Is not the Government correct in seeking a clarification whether it amounts to a stay, and if it is,, should not a larger Bench (than Indra Sawhney) hear the matter? After all, if the lists are not credible, because of the lack of survey etc, then the 16(4) quota also would come under attack.
( I am thankful to Dr.M.P.Raju, advocate, Supreme Court of India for helping me to understand some of the issues, and Mr.P.S.Krishnan, advisor to Human Resources Development Minister, Arjun Singh, for clarifying certain doubts. However, I am alone responsible for any gaps that the reader may come across in the post.)
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