Wednesday, October 31, 2007

Mandal II hearing: arguments of Ram Jethmalani

It was amazing to find how Ram Jethmalani relied on just a two-page judgment delivered by a Seven-Judge Bench in 1951 to show that the petitioners in this case have no merits.

It is a matter of surprise, he said, that the relevance of Supreme Court’s judgment in B.Venkataramana v. the State of Madras (AIR 1951 SC 229) has not been sufficiently understood. The judgment was delivered by a Seven-Judge Bench and it binds the present five-Judge Constitution Bench. In this judgment, the SC set aside that part of the communal G.O. of the then Madras State which dealt with classes other than SCs and Backward Hindus and sustained the validity of that part of the G.O. which reserved posts for Backward Hindus and SCs.

Why did the SC do this?

Since Jethmalani dealt with this judgment at length, I tried to get a copy of this as it is not available on line. (IT IS AVAILABLE HERE, THANKS TO MR.PARAMESHWAR, ONE OF OUR REGULAR READERS) Briefly, the Madras Public Service Commission invited applns. For 83 posts of District Munsiffs to be filled by direct recruitment. Selection of candidates was to be made from various castes, religions, and communities in pursuance of the rules prescribed in what are popularly described as communal G.O.s namely, for Harijans (SCs) 19, Muslims 5, Christians 6, Backward Hindus 10, Non-Brahmin Hindus 32 and Brahmins 11. Different and unequal age limits for candidates of the above mentioned different classes were fixed and no age limit was fixed for Harijans and Backward Hindus.

It was admitted by the Advocate General that the marks secured by the petitioner would entitle him to be selected if the provisions in the communal G.O. were disregarded. He, therefore, prayed for an order declaring that the rule of the communal rotation, in pursuance of which the selection was made was repugnant to the provisions of the Constitution, and thus void.

The Court held that it is impossible to say that classes of people other than Harijans (SCs) and Backward Hindus (as mentioned in the Schedule of BCs set out in Sch.III to Part 1 of the Madras Provincial &Subordinate Service Rules) can be called Backward Classes. The Court held: “As regards the posts reserved for Harijans & Backward Hindus it may be said that the petitioner who does not belong to those two classes is regarded as ineligible for those reserved posts not on the ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens; but the ineligibility of the petitioner for any of the posts reserved for communities other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin.” This ineligibility, the court said, is not sanctioned by Art.16(4). The communal G.O., therefore, was declared void and illegal, as it was repugnant to Art.16. The Court did not consider it necessary to consider the effect of Article 14 or 15 on the case of the respondents.

Using this judgment, Jethmalani argued that advancement of the interests of backward Hindus and the SCs is not discriminatory only on the ground of caste. In other words, if you were competing against backward Hindus and SCs, it is not repugnant to Article 14 and 15. Emphasis on ‘only’ in the body of the judgment was underlined by Jethmalani.

In Balaji v. State of Mysore (AIR 1963 SC 649) the Supreme Court fixed the maximum ceiling of 50 per cent for all kinds of reservations, but Venkataramana did not find a mention in Balaji. This, according to Jethmalani, was surprising. In Balaji, the Court took strenuous objection to the exclusive reliance of Mysore on caste (in the sense of rank or standing) as a criterion of social backwardness and noted that occupations and place of habitation are also relevant. Venkataramana has not been reversed, and therefore, is binding. The simplicity of this rule obviates the long, long arguments on determining what is educational and social backwardness, making them totally redundant. Only argument that survives is: is it a fraud on the Constitution? There is no such pleading. Such a pleading is not possible. Balaji, he said, is a reflection of Nehruvian viewpoint. Slowly, the Ambedkar philosophy prevailed.

Petitioners have cited Jawaharlal Nehru’s letter to the chief ministers on August 14, 1961 wherein he advised the States to follow economic criteria to identify backwardness. He said the State Governments rightly did not follow this advice. Had they done so, all their lists would have become ultra vires in view of the judgment in Indra Sawhney which declared 10 per cent reservation for economically backward as unconstitutional.

Jethmalani pointed out that even Indra Sawhney judgment did not refer to Venkataramana, even though in Indra Sawhney, the Court agreed that the word “only” in Article 16(2) was decisive. Therefore, determination of backward classes and the exact meaning of backwardness are irrelevant. The question to be asked is “Is it only caste?”,

He described the petitioners’ attempt to reverse the Indra Sawhney judgment by this five Judge Bench as impertinent. Certainty of laws must be preserved, he said. In the Bengal Immunity case, Chief Justice Das, laying down the doctrine of finality, has said we should not lightly dissent from previous view. Merely because previous case was wrongly decided is no ground to reverse it.
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