Wednesday, April 25, 2007

Why No Skimmed Quotas under Article 15?

Since Mr. Venkatesan is such a forensic interpreter of our Court's jurisprudence and the larger political canvass regarding reservations, I would like him to elaborate his assertion that the creamy-layer requirement under Article 16 (4) is to be handled differently under Article 15 (4). I, for one, am unable to comprehend what "peculiar differences" exist between jobs and educational seats that would make the creamy-layer requirement apply to one type of reservations and not to the other. As Pratap Bhanu Mehta says, the government has failed to articulate a proper justification to avoid the creamy layer issue in education.

I must admit I have not read the recent cases on reservations quite carefully as I have wandered away from that field for a few years. Yet, having studied the subject quite intently earlier, I question whether it is appropriate to confine Indira Sawhney's creamy-layer requirement to only public employment. I cannot recall anything in Justice Jeevan Reddy's majority decision for the constitution bench that limited "skimming" the creamy layer to jobs. It is true that the underlying case involved the constitutional validity of the 1990 office memos implementing the Mandal recommendations. But, if I recall correctly, the matter was first placed before a constitution bench of five judges. It was subsequently referred to a nine-judge bench "with a view to finally settle the legal position relating to reservation."

With this mandate, the judges in Indira Sawhney covered a wider canvas of issues than just that the validity of the office memos implementing the Mandal recommendations. In fact, during the hearings, the government's lawyers asked the court not to consider reservation in promotion for SCs and STs on the ground that the issue was not before the Court. The Court rejected that objection and proceeded to overrule Rangachari's Case, which ultimately resulted in a constitutional amendment. Therefore, I am unconvinced by attempts to restrict the scope of Indira Sawhney's holding to Article 16 (4), which I must say, was a fair and balanced decision given the competing constitutional interests at stake.
Post a Comment