Wednesday, April 16, 2008

Mandal II Judgment: More questions than answers

[Mr.Rampal of the Bailey contributed this insightful analysis in the Comments Section. I am glad to post it on his behalf, to facilitate better visibility and further debate. I thank him for the contribution. -V.V.]


I think the judgments raise as many questions as they answer. Some first impressions-

1. KGB (Chief Justice) excludes the creamy layer, but after setting out the OM criteria says they may be relaxed if enough OBCs are not found to fill the seats. This defeats the entire point of the creamy layer. None of the other judges specifically concur with the relaxation holding. Pasayat and Bhandari both hold the creamy layer violates art. 14 and the basic structure. Raveendran says he agrees with Pasayat and KGB that creamy layer has to be excluded. Hopefully, the relaxation of standards can be read as obiter.

2. It is at the least odd to refuse to consider pvt edu inst considering that arguments were advanced qua them, without any objections from the respondents, as Bhandari records in his op. they could have been impleaded if required, and again, as Bhandari points out this would have saved valuable time and expense as regards future litigation. It would be another thing if the judgment were to hold that the petitioners lacked locus, a finding it does not make.

3. KGB refuses to apply the creamy layer to SC/STs saying that they are a class by themselves and that it is not a general concept of equality. This is a dangerous holding, but again one he seems to be alone in. Pasayat and Raveendran are silent on this, and Bhandari leaves the question open to be decided in a future case. From the tenor of the other judgments it is clear that they consider the creamy layer concept to be crucial qua equality (treating unequals equally and vice versa).

4. The factual basis for the holding that caste has not formed the sole basis for the fresh reservation leaves much to be desired. After extensively quoting various sociologists and judgments, KGB brushes off this question in three short paras (paras 140-142) without providing any details of what precisely the other criteria were and whether they were satisfactory. This is all the more disturbing in view of the emphatic holding by 3 out of 5 judges (Pasayat, Thakker, Bhandari) that the government has no OBC data and its figures (52% of popn is OBC) cannot be accepted.

5. It would have been reasonably simple to hold that art. 15(1) forbids only ‘discrimination’ on the basis of caste and since affirmative action is not discrimination there is nothing wrong in reservations being caste based. This argument would flow naturally from the Courts view that arts. 15(4) and 16(4) are facets of equality and not exceptions to the equality principle. KGB, Pasayat and Thakker reiterate the facet view, while Bhandari views 15(4) and 16(4) as exceptions to the (formal) equality principle. Tarun points out that this may be because they (the judiciary) wish to retain control over reservations.

6. Most interestingly, it seems eminently arguable that 3 out of 5 judges have held that once a person is a graduate he can never be considered a member of a SEBC (see para 139(5) of Pasayat’s judgment, and para 273 of Bhandari’s judgment). This would take all IIMs and post grad institutions out of the purview of reservations. (SEE COMMENTS FOR CORRECTION)

7. Standard of review- while KGB explicitly rejects strict scrutiny, Pasayat seems to confuse it with art. 19 reasonableness review (cites VG Row etc)and calls it just a tag (paras 132-133) and mysteriously says ““In that sense, the strict scrutiny test is not applicable and indepth scrutiny has to be made to decide the constitutionality or otherwise, of a statute.” Bhandari also emphasises the value of comparative material and holds that caste is similar to race and ‘careful scrutiny’ must be applied. Raveendran is silent on the point. It cannot be said that there is a clear plurality holding qua this issue.

8. Bhandari’s opinion has several holdings qua art. 21A. he orders a time limit to be set for its implementation within 6 months and virtually orders the UoI to enact a law for compulsory school education, while finding that primary education is unsatisfactorily funded compared to higher education. It is unknown whether all these issues were argued (why do the other judges not mention them)or whether all these holdings are purely gratuitous. Bhandari also challenges the established dogma that the First Parliament can be equated with the Constituent Assembly since their composition was nearly identical holding that art. 15(4) was a deviation from the Framers vision. He also pitches in strongly for the use of income criteria.

9. Pasayat’s judgment reads like the dissent that never was and he doesn’t seem to make any specific findings qua the 93rd amendment despite quoting extensively from various judgments.

10. I suspect that in order to make the judgment ‘unanimous’ (a dubious claim given the possible pluralities), KGB conceded creamy layer, and the rest conceded the validity of the constitutional amendment and the law. Being lacking in clarity, the judgments are sure to spawn future litigation, the most unsatisfactory thing in this area of the law.
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