Contentious issues beyond quotas: The Forests case

For now, debates on OBC quotas are on hold, as we wait for the Supreme Court's next move on May 08. But it is becoming clear that the quota issue is but one among many that are at the heart of the recent institutional struggles between the Judiciary on the one side, and the Executive and the Legislature on the other.

On April 26, Lok Sabha Speaker Somnath Chatterjee addressed the overall issue squarely while delivering a public lecture. Excerpts from that speech are carried in this column in the April 27 issue of the Indian Express. For the most part, the lecture covers fairly conventional analysis, focusing on the roles of the three wings of government, and quite predictably, making the case that the Indian Judiciary should respect the constitutional powers of the Parliament and Executive.

I was drawn to the section where Chatterjee focuses on some recent judicial actions which he considers problematic, though he prefaces that statement by making the reasonable (and necessary) concession that judicial review is of course entirely legitimate. This is refreshing, particularly in view of recent statements by members of other Left parties, which seem to betray a misunderstanding of basic notions of constitutionalism, by asserting that the Indian constitutional regime is one where parliamantary supremacy is the governing rule.

"NO ONE can take exception to any decision in the exercise of judicial review (subject, of course, to the provision of review or appeal, where it lies) invalidating any law or executive action, but where it seeks to lay down some new policy to be adopted or actions to be taken and uses its supposed power to compel executive action on the same without any known authority or procedure, serious questions necessarily arise about the source of such power.

Now-a-days, there are umpteen instances where the judiciary has intervened in matters entirely within the domain of the executive, including policy decisions. Recently, a media correspondent has compiled a list of issues and matters in which the courts have apparently, if not clearly, strayed into executive domain or in matters of policy. He has noted that the orders passed by the hon’ble high court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhiites breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines.

The Jagadambika Pal case of 1998, involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, to my mind, are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers. The interim order of the Supreme Court in these two cases, to my mind, upset the delicate constitutional balance between the judiciary and the legislature. I feel that these were instances of unfortunate intrusion by the Supreme Court into well-demarcated areas of powers of the legislatures, contrary to the provisions of Articles 122 and 212 of the Constitution. Chief Justice Verma has recently described the orders in the UP and Jharkhand cases as judicial aberrations and has expressed his hope that the Supreme Court would soon correct them."

In the subsequent sections, Chatterjee focuses on the principles of constitutionalism which counsel against such aggressive judicial actions. Again, much of this is trite, and this could well be an abstract academic paper discussing principles without referring to any specific country, because Chatterjee seems to ignore the realities and political factors in India which have led over time to the judiciary adopting such an aggressive position. It is only towards the end of the lecture that Chatterjee implicitly recognises this, when he asserts:

"ALMOST all votaries of judicial activism, including the hon’ble judges themselves, while exercising power in such assumed jurisdiction justify it on the supposed failure of the legislature or the executive authorities in taking proper action to mitigate the people’s grievances or to find solutions to people’s problems."

Chatterjee's response is interesting, because it seems to concede the force of this criticism. He does not seek to refute it, but focuses instead on the judiciary's institutional incapacity to address these problems on its own:

"But with regard to dispensation of justice, how many ordinary citizens of the country, who are oppressed and subjected to various forms of discrimination and denial of rights, particularly women who are victims of torture and exploitation, can have access to the courts, specially the highest court of our country? How many dismissed employees, how many victimised teachers, how many senior citizens, how many disadvantaged people staying in far flung areas of the country who would need to seek justice can approach the apex court of our country? The geographical distance, prohibitive cost of litigation, inordinately long time taken for disposal of matters, discourage or otherwise make it impossible for ordinary litigants to approach the court.

The large number of arrears pending in almost all the courts is affecting the people’s faith in our justice-delivery system. These issues require to be given very serious attention not only by the legislature or the executive but also by the judiciary. One has to admit that in many instances the judiciary (without attributing any fault to it) is not able to cater to the needs of the common people of the country in adequate measure. Now, in such a case, can any other organ of the state take up on itself the right to exercise judicial powers on the plea that judiciary has not adequately been able to do so?"

It is interesting to contrast the Speaker's take on the issue with that of Rajeev Dhavan who addressed the same issues in an op-ed piece which appeared in the April 27 issue of the Indian Express). Dhavan's piece, reflecting his academic background as well his current role as a leading Supreme Court lawyer, provides a historical perspective of the tussles between the three wings of government and lays out four broad categories of judicial actions that he terms "areas of discontent." Dhavan concludes that "[w]e are in the midst of a controversy as big and complex as the property and sovereignty controversies of the Nehru and Mrs Gandhi eras. "

While Dhavan's tone and style throughout the piece is academic and objective, there is one issue on which his comments are quite scathing. This is in reference to the Supreme Court's intervention in the Forest cases, and this is what he has to say:

"Can a case concerning forests go on for years — with decision-making shared with an amicus and a Supreme Court created committee that holds hearings with pride and prejudice as if it were a consultative wing of the Supreme Court."

Interestingly, this is strikingly similar to the argument adopted by the Additional Solicitor General in opposing the Supreme Court's continued intervention in the forest cases. More details of the latest order in the Forest case, including the argument of the ASG resisting judicial intervention, can be found in this newsreport from the April 27 issue of the Indian Express.

Even if the OBC quotas issue gets resolved equably (and there don't seem many signs of that as of now, given the strident statements issued by politicians over the past few days), the leaders of the three main institutions of Indian goverment will have to adopt sagacious steps to avoid a constitutional crisis in the coming months.

Update, May 03: The full text of the Speaker's speech is available here.

Mandal II: The propriety of CJI's intervention

The manner CJI has exercised his prerogative in advancing the hearing of the Ashoka Kumar Thakur case to May 8 has dismayed some of our co-bloggers. Now, that the case is to be heard by the same P-P Bench, I am summing up here some of the legal arguments in defence of the CJI. It appears the CJI had no leeway to change the Bench, since Rule Nisi has not yet been issued:

1. Had it been a part-heard matter, the CJI could not have intervened; that is, between March 7, 2007 when it was first heard, and March 28, before it delivered the interim/final order on the stay. Once the order had been delivered, there is no fetter on the CJI's power.

2. Since Court is closing for vacation in May, no request for expediting final hearing could be entertained in April in the normal course. It is not a practical request that could have been made to the Pasayat Bench. Still, the Solicitor General made the oral request for early hearing, which elicited the '56 years' remark from the Bench. If Rule Nisi was issued and Justice Pasayat himself had fixed the matter for hearing on May 8, there would have been no grievance. If Rule Nisi was issued by Justice Pasayat, then it is logical that the matter is fixed for hearing by the CJI. Once Rule Nisi is issued, it becomes the part of the Court's final hearing calendar, and it becomes the responsibility of the CJI to assign Benches. But Rule Nisi has not yet been issued in this case, even though the Centre has challenged the notice to show cause why Rule Nisi should not be issued. Normally, if the Bench thinks the PIL being heard can be expeditiously disposed of, there is no formal need to issue Rule Nisi. In this case, there is a challenge to Constitutional validity of a statute, and there has to be a detailed hearing. There is an element of urgency. But Rule Nisi has not yet been issued.

3. Even when Rule Nisi has not been issued, and the matter is in after-notice stage, the power to fix the matter is with the CJI. If Justice Pasayat had fixed the matter in August on the basis that he has other cases scheduled before vacation, then also CJI could, if satisfied with the urgency, say that this case must take priority over other cases. However, this power is not normally exercised, and is a little awkward exercise of CJI's prerogative. Off late, some Judges have the tendency to fix dates for hearing even beyond after notice stage. Therefore, the CJI is right if he feels that he has the prerogative to fix dates in such cases.

4. Once a case crossed the administration stage, then the CJI has the power to mark it to the appropriate Bench. The Supreme Court Rules are silent on this, and it is a matter of convention that he does not normally do so.

5. In matters of urgency, the Court had advanced the hearing of a case even to summer vacation. In 1974, In Re Presidential Poll, the Supreme Court's Constitution Bench heard the matter during the summer vacation, as the Government sought to get the court's advisory opinion on the validity of Presidential election, before it is held, as the Gujarat Assembly had been dissolved and President's rule imposed. (The Supreme Court held the election would be valid even in the absence of the Gujarat assembly). It is clear, however, that the P-P Bench and the CJI differ on the question of urgency in this case.

6. The Government's strategy on May 8 will again be to seek reference of the case to a Constitution Bench. If the P-P Bench does not agree to it, then perhaps there are very limited options before the Government.

The Mandal II Debate:More Questions than answers

Since there have been quite a few comments on my stand, I thought I could post a fresh piece, than respond to those comments separately.
First, I would like to thank Mr.Vikram Raghavan for the compliment, even though I hardly deserve it. I find, however, that my interpretation of the events which led to the CJI advancing the hearing of the case to May 8 has so far not been seriously disputed, which only shows my co-bloggers share my perspective on this, to some extent.
Secondly, Mr.Vikram wants me to explain how creamy layer criterion for the purpose of 16-4 could be different from that of 15(5). I feel the answer has already been provided by Mr.Pratap Bhanu Mehta. He agrees that the Government’s arguments in favour of not excluding creamy layer for the purpose of 15 (5) are “reasonable”. But he tends to agree with the Pasayat-Panta Bench that it is “inadequate justification”. Now, to my understanding, there is no big gulf between the etymological significance of the words “reasonableness” and “justification”. In other words, what is reasonable, can also be of assistance in justification. The March 29 Order of the P-P Bench does not say Government’s justification is inadequate on creamy layer issue. It simply avoids any mention of the Government’s many arguments, saying they need to be examined at length during the August hearing. It does not even prima facie record any finding that these arguments are inadequate justification. Mr.Mehta believes that the stay was given on the basis of the Bench’s finding that the Govt.’s justification on creamy layer is inadequate. I do not know how he would explain, if he is pointed out that there was no such finding at all. No doubt, it is just a stay. But let the stay be justified on certain grounds.

However, I do agree, as pointed out earlier in the comments section, that the Government could have explained/answered better the criticism that there is inconsistency in its reliance on the OBC lists, adopted for 16(4), for the sake of 15(5),and its reluctance to exclude creamy layer, as mandated by Indra Sawhney.
In principle, I do not have strong views in favour of including creamy layer. In fact, my perspective on this is still evolving. First , I seemed to agree with Justice O.Chinnappa Reddy’s view that since creamy layer in the general category is not excluded from the job b enefits, there is no rationale for excluding creamy layer from the OBCs. I found the Indra Sawhney’s judgment somewhat inconsistent in the sense – they justified exclusion of CL in order to maintain compactness of the OBC group, even though 16(4) was about favouring those classes inadequately represented in the services. Still, I thought one could go along with it, since a subsequent amendment facilitates carry-forward of unfilled vacancies (A.16 [4B] ) since the concern of pro-creamy layer group is about unfilled vacancies due to want of sufficient eligible candidates within the non-creamy layer OBCs. In the case of educational institutions, the situation is different, as there is no carry-forward rule, but the unfilled seats would invariably go the general candidates within the same academic year.
That is why I found the CPI(M) proposal somewhat interesting: first reserve 27 % for the non-creamy layer OBCs, then the unfilled seats within the quota could go to the creamy layer OBCs. Mr. Ravi Srinivas believes the CPI(M) is not sincere, as it plays a different game in TN. May be. But I would like to confine myself to the merits of the proposal, rather than analyse the motives of the proposer. I should, however, add that my views on creamy layer are not still final, and I am amenable to more persuasive arguments.
Other bloggers have expressed other criticisms, of which one needs to be rebutted: I seem to agree with the view that the court is fine, as long as it passes decisions with which Parliament agrees. My answer: It is very rare that Parliament unanimously passes a law, with which the Court is unhappy. Even then, I am not in agreement with the view, I am credited with by my critics. Let the Judiciary do its job of interpreting the law. If the Parliament is unhappy with its decisions, it has remedies, in the form amending the law and the Constitution, as happened in the 1950s, in the matter of land reforms, the very First Amendment being the finest example. Imagine the Nehru Government being criticized for overturning the Champakam Dorairajan verdict in 1951 through the First Amendment which resulted in 15(4). Is not 15(4) now accepted as a reality, and proof of our commitment to compensatory discrimination? Were the Courts unhappy then, or even subsequently? Did not the Courts later take this Parliament’s assertiveness in their stride? Imagine what would have happened, if the Courts had the final say in all those landmark cases? Would it have been possible for our Governments to go ahead with governance and several welfare measures for the people? No doubt, the Government has realized the importance of 15(5) belatedly in 2006, only because T.M.A. Pai and Inamdar decisions did not come earlier from the SC. The critics question the Government’s timing of the Act, and attribute political motives to it. Which Government has no political motives? If all parties support a measure, which party is likely to derive undue political advantage from it? Are political motives inherently unethical in a democracy?

Misconceptions in the OBC Quota Debate - Part I

The recent SC Order refusing to vacate the stay was an interesting order. I can certainly expect a strong political reaction. But I can also see an assertive judiciary. May be we are back to the property rights days. We can certainly expect exciting moments ahead. Reminded of an old Chinese curse – May you live in interesting times!

One might perceive the Supreme Court, as being anti-OBC quota, but that would miss the deeper issue over here. I think the key assumption that is being contested over here is – whether caste is a proxy for backwardness. The government says yes. And the Supreme Court is not inclined to believe that answer, and rightly so, because the data on which reliance is being placed for that answer are state OBC lists which are as old as 40 years for many states.

I agree with Pratab Bhanu Mehta – we should use this SC intervention to rethink about desirability of caste-based reservation and whether these policies are being targeted to the right audience. But increasingly, the debate is being now being focussed on technical legal issues which have acquired significance in light of the SC order. In this post, I deal with two fundamental misconceptions that have played a key role in this debate. (There is some unavoidable repetition from an earlier post of mine in support of the SC order)

Misconception no 1:
The Recent Supreme Court ruling is inconsistent with its prior Nine Judge Bench ruling in Indra Sawhney in 1992

A good section of the political class and the media have strongly asserted the charge of inconsistency against the current Supreme Court ruling. They assert that Supreme Court in Indra Sawhney has already approved reservation for OBC based on data and the Court cannot question its prior ruling now for lack of data. Mr. Venkatesan in his recent post suggests that Parliament in response to the recent set back should define “OBC” to mean “OBC as approved by the Supreme Court in Indra Sawhney”

This represents a gross misunderstanding of the Supreme Court judgment. The SC in Indra Sawhney did approve the OBC reservation in state employment based on state OBC lists (and not on the basis of the Mandal Commission Report), but that observation does not justify reservation OBC reservation in educational institutions 15 years down the line. If that was so, we can have OBC reservation in perpetuity based on a 1992 ruling upholding reservation based on state lists of OBC (which themselves go back several decades)

It is for this reason the Supreme Court in Indra Sawhney said that there should be a periodic revision to the list of OBC’s. (Para 847 in 1992 Supp (3) SCC 217 per Jeeavn Reddy) The Supreme Court said that backwardness being a relative term must be judged by reference to the entire population (para 795) and a “survey must cover the entire populace.” (See Conclusion 3(b) in Para 859 and 785) The Court is not saying that the government must do a house to house survey, but the government must do a sample survey which gives a sense as to how each section of the society is placed in comparison to the other. I would strongly recommend everyone to have a look at Para 857 of Indra Sawhney where Jeevan Reddy outlines various state lists. It shows how old the state lists are. In Bihar, the last survey was done in 1971, in Gujarat it is 1976, in Kerala- 1967, in Maharastra-1964. So in essence a class which has been identified as backward in 1960’s is still getting the benefit even in 2007. This is a complete mockery of the Supreme Court judgment in Indra Sawhney. In fact the government has only been adding to this list. There have been more additions than deletions.

The government knew that it has to conduct such a survey in 1992 when the Indra Sawhney ruling came out. Did it conduct a survey in 1992? It did not. The government had an opportunity to conduct such a survey along with the general census in 2001, but it failed to exercise that valuable option. Did the government do a survey in 2003 which was 10 ten years after the Indra Sawhney? It did not. But suddenly in 2007 the government discovers that it has to give reservation for OBC’s. It is difficult not to see a political motivation for this exercise. In fact the National Commission for Backward Class Commission has been complaining that the government has not been providing infrastructure to conduct a survey.

The government relies on the recommendation from the National Commission of Backward Classes in 2003 which is to the effect that the government need not conduct a fresh survey since reservation for OBC’s is only ten years old. That recommendation is not even worth the paper on which it is written on. In Indra Sawhney, the Supreme Court said that the government in conducting the survey, the government must consult the Commission. (Para 847) It doesn’t mean that government can escape its obligation to conduct by relying on an ill-conceived recommendation of the Backward Classes Commission. And in any case, the recommendation of the Backward Class Commission is not a defense for non-compliance of constitutional obligations. The Court has struck down the Backward Class recommendations many a time. Just two days ago, the Supreme Court rejected the recommendation of the Kerala Backward Classes recommendation on creamy layer. And in 2005, a five judge bench of the AP High Court struck down a unanimously passed state enactment giving 5% Muslim quota on the ground that it was based on ill-conceived and inadequate recommendations of the State Backward Classes Commission.

Misconception no 2:
The Supreme Court in Indra Sawhney Accepted the Mandal Commission recommendations and therefore the government is entitled to place reliance on them

This is a bigger misconception in the entire OBC debate. Even those who are against the OBC quota assume that the Supreme Court has approved the Mandal Commission recommendations. THE SUPREME COURT DID NOT APPROVE THE MANDAL COMMISSION RECOMMENDATIONS. In fact, if one strictly follows the technical rules of precedent, the Supreme Court actually rejected the Mandal Commission recommendations.

This confusion arises because of multiple judgments in Indra Sawhney. Indra Sawhney was a bench of nine judges and out of these nine judges six opinions came out. The opinion that is most often referred to is of Justice Jeevan Reddy who wrote on behalf of Justices Venkatachelliah, Kania, Ahmadi and himself. Justices Sawant, Pandian, Kuldip Singh, Thommen and Sahai delivered individual opinions. Ordinarily when there is large bench, it is conventional to have one opinion that represents the majority for the sake of clarity followed by some concurring or dissenting opinions. (Keshavananda Bharati being a distinguished exception to this convention) Indra Sawhney is also one such exception. In such a scenario, the ratio has to be ascertained by seeing the opinion of each judge on each issue and then add the numbers. It is a settled rule of precedent that an opinion can be in the majority on issue and be in a minority on another issue.

In Indra Sawhney, Justice Jeevan Reddy upheld the controversial Office Memorandum (OM) which provided for 27% reservation in state employment. Two judges – Pandian and Sawant also upheld the OM. Three judges – Singh, Sahai and Thommen – declared the OM as unconstitutional. But what is binding is not the final conclusion, but the reasoning on which it was based. When it came to the issue of Mandal Commission recommendations, the Court was sharply split even among the majority. Their opinion can be outlined below

· Jeevan Reddy (on behalf of four judges) upheld the OM on behalf of the State OBC lists and not on the basis of the Mandal recommendations. Although he did approve the criterion on which Mandal Commission went about identifying backward classes (predominantly caste –Para 854), he expressly made a decision not to get into the adequacy or inadequacy of the Mandal recommendations. In response to the arguments criticizing and defending the Mandal Commission Report, he observed
"it is unnecessary for us to express any opinion on the correctness or adequacy of the exercise done by the Mandal Commission. (If and when the Government of India notifies any caste/ community/group/class from out of the Mandal list, which caste etc. is not included in the appropriate State list, would the said question fall for consideration. It is then that it would be necessary to deal with the criticism against the Mandal Commission). For the same reason, it is unnecessary to refer or deal with the arguments of the counsel for Union of India and the Respondents in justification of the Mandal Commission Report. (Para 856 in SCC)"

So central was this determination to his opinion, he even put this in his list of conclusions at the end of the judgment

(14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. (Para 859 in SCC)

He justified his conclusion on the ground that OM was not based on the Mandal Commission recommendations since the Government of India has not accepted it. (851)

· Justice Pandian was the only judge among the nine judges who expressly approved the Mandal Commission recommendations. (Para 140)

· Justice Sawant was ambivalent on the Mandal recommendations. He said that there was nothing wrong with the criterion adopted by the Commission, but – like Jeevan Reddy – refused to get into the merits and instead sought to rely on the State OBC lists. (Para 551)

· Justices Kuldip Singh, Sahai and Thommen in each of their opinions vigorously attacked the Mandal Commission Report on the criterion adopted and the methodology. Justice Kuldip Singh was very emphatic in his criticism of the Mandal Report

It is, thus, obvious that hardly any investigation was done by the Mandal Commission to find out the backward classes for the purposes of Article 16(4). A collection of so-called backward castes by a clerical-act based on drawing-room investigation cannot be the backward classes envisaged under Article 16(4). If the castes enlisted by Mandal are permitted to avail the benefit of job-reservations, thereby depriving half the country's population of its right under Article 16(1) the result would be nothing but a fraud on the Constitution. (Para 393 (v))

So out of nine judges, 5 judges (Jeevan Reddy + Sawant) expressly refused to express any final opinion on the Mandal Commission recommendations and even left the issue open for a future day. So out of the remaining four judges, three of them rejected the recommendations and only one judge expressly approved them.

Given this, I find it almost perverse to assert that the Supreme Court approved the Mandal recommendations. (If anything one could actually argue that the Supreme Court rejected Mandal recommendations since three out of four judges rejected the recommendation)

What is more disconcerting is the extensive reliance placed by the Central government in its written submissions on the opinion of Justice Pandian in support of its stand. Its not only unfair, but would probably tantamount to misleading the Court.

PS: I will deal with the standard and the extent of judicial review in the affirmative action cases in India in the next blog.

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.

CJI's Ruling on Early Hearing in Mandal-II -- More Thoughts

I find Mr. Venkatesan's thoughtful and well articulated comment to my post quite persuasive. I am grateful to him for his courteous and professional response, which helps advance the debate substantially. However, I am not convinced that Article 76 (3) of the Constitution entitles the Attorney General to ask one bench of a Court to intervene when another declined to do so. Moreover, even if the Chief Justice was required by the Constitution to hear the Attorney General, it does not mean that the Chief Justice had to concede what the government was asking. I would find it highly irregular if the Chief Justice's ruling was based on such reasoning (and I have found no evidence to suggest that it was).

In any case, I have always found Article 76 (3) to be somewhat of an anachronism to our constitutional and legal scheme. It was one of those superfluous English traditions in the Constitution that our founders, in their wisdom, included largely influenced by the prevailing spirit of their times. I should also point out that the office of the Attorney General is not exactly the same as the Lord Advocate General of England (I recently listened to a presentation on this topic by Lord Goldsmith, the incumbent English Advocate General). Even if the Attorney General were somehow entitled to deference on account of his constitutional office, the idea that he, while appearing for the government in a case, has an automatic "right of audience" before a court that other lawyers representing opposing litigants lack seems, personally to me, to be inconsistent with the constitutional objective of equal access to justice for all parties.

It is certainly true that, as a statutory matter, we now have a class-based system of senior advocates and other advocates under the Advocates Act. But that system, which itself was introduced to create an "integrated bar," does not justify special access to the Court for the Attorney General, as the government's principal lawyer (and by extension, his client, the Central Government) in a pending litigation where the Court had not sought his intervention or advice (as it routinely does in an matter with important constitutional dimensions or in an advisory proceeding).

I am also attaching comments I received from Pratap Bhanu Mehta on this matter.

Dear Vikram and Arun,

Just a quick response to your posts. A lot of what we
make of this will depend upon how the case eventually
proceeds. But I think I disagree with Arun for the
following reason:

Think of the options the CJI has on May 8,
irrespective of which bench it gets referred to

a)vacate the stay on implementation of reservations.
This would amount to overturning the Pasayt Bench's
claim that the government has not answered it fully.
It would certainly amount to the fastest about face a
Court has done. This would be tantamount to a final
verdict (since students are being admitted)

b)not vacate the stay. In which case what has been
gained by "fast tracking" as far as this academic
session goes

In the first case the Court ends up giving credence to
the view that "it all depends on the bench" and will
raise an interesting debate about gerrymandering the
bench. In the second, it simply postpones the issue by
two weeks.

I can see the point of trying to defuse an explosive
situation. But it also raises a dangerous precedent of
governments literally blackmailing the Court into
submission by a)unnecessarily exaggerating the harm to
students (SC and general category students could have
been admitted by now) and b) more importantly, using
the threat of public disorder to make the Court
succumb.

I agree with Arun, that the remark about 57 years was
unnecessary. But the Court was also asking the
government about repeated non-compliance with its
order. Perhaps the Executive could say to the Court,
we have not implemented your orders on the creamy
layer for 17 years, why get exercised now!!!

CJI's Order for Early Hearing in Mandal-II

I write in my personal capacity to say I find it unusual that the learned Chief Justice of India (for whose sagacity and experience I have great respect) intervened in this matter after another bench of the Court expressly declined to do so. The Chief Justice's intervention raises several juridictional and substantive issues, which I hope our blogging community can interrogate. I agree that it is the Chief Justice's prerogative to assign matters among different benches. But once the matter had been assigned to the Pasayat-Panta bench, the Chief Justice ought to deferred to that bench to handle the matter unless there were compelling reasons (which should have been stated) for intervening in the matter. After all, Justice Pasayat (whose judgments I have followed with great interest for many years) is an experienced and sound judge whose integrity has not been questioned. By contradicting the Pasayat-Panta bench, the Chief Justice's ruling could be interpreted (even if it was not intended that way) as having overruled the former's order issued hardly a day earlier.

I understand the predicament of the Attorney General and the Solicitor General who were caught in a bind in a very important case. But the proper course of action would have been for the government to seek a review of the order denying a vacation of the stay (if a review against such an order were permissible under the Supreme Court's rules) rather than appearing to indulge in what could be unfortunately perceived as forum shopping among different benches of our Court. I invite comments on this matter from my other colleagues and our regular readers.

Murdoch Praises the Indian Supreme Court

A vote of confidence in our Supreme Court from an unlikely source.

Stay on Mandal II : A Way Out

With the Supreme Court’s Pasayat-Panta Bench refusing to vacate the stay on the applicability of the CEI(RA)Act to the OBCs this academic year, there is now a dire need to look at possible options for the Government. The Bench’s observation that the nation has waited for 57 years, and it can afford to wait for six more months (till the case is finally heard, although in effect it would mean losing a full year) may be viewed as totally unnecessary and even unjustified, and insensitive to the OBCs, with full of aspirations. The political class is unlikely to accept this refusal, and most likely explore the possible options to overcome this setback. Whatever the merits of the Bench’s decision, (the Bench has not gone into the merits of not staying the Act at all), we have to accept it as given, and look at the alternatives before the Government dispassionately. Letting the OBCs lose a year is certainly not a wise and sensible option.

The interim order (the Bench calls it final order insofar as the move to deprive the OBCs the benefits this academic year) indicated two hurdles before the Act could be approved: the validity of data and the exclusion of creamy layer. In today’s hearing, surprisingly, the Bench appeared to have agreed with the Solicitor General that Indra Sawhney Bench had approved the 27 per cent reservations for the OBCs, and therefore, the question on data for a similar quota for admissions in CEIs does not make sense. But the Bench immediately linked this issue with that of creamy layer exclusion, and asked the SG that the Government has not excluded it, even though Indra Sawhney made it mandatory. It appears to be reasonably clear that it is the creamy layer exclusion that is bothering the Bench, rather than the absence of a fresh survey to identify the OBCs for the purposes of the Act. It is in this context, the Bench observed that the Government wanted to play the game first, and frame the rules (regarding creamy layer) later. But the Bench did not admit that the creamy layer exclusion rules are already available, but the Government had taken a deliberate stand to include creamy layer, in view of the peculiar problems facing the OBC students seeking admission in CEIs. This has been explained at length twice – in the counter affidavits of the Government and in the application to vacate the stay. But the Bench has chosen to ignore the Government’s arguments for the present, rather than give it due consideration.

Now, is there a way out? The Government, it appears, can certainly work on this option, and build all-party consensus, with the next Parliament session beginning on April 26. The power of the legislature to validate matters which have been found by judgments or orders of competent courts and Tribunals to be invalid or illegal is a well-known pattern. The legislature validates acts and things done by which the basis of Judgments or orders of competent courts and Tribunal is changed and the judgments and orders are made ineffective.

The effect of validation is to change the law so as to alter the basis of any judgment, which might have been given on the basis of old law and thus make the judgment ineffective. A formal declaration that the judgment rendered under the old Act is void, is not necessary. If the matter is pending in appeal, the appellate court has to give effect to the altered law and reverse the judgment. The rendering of a judgment ineffective by changing its basis by legislative enactment is not an encroachment on judicial power but a legislation within the competence of the Legislature rendering the basis of the judgment non est. The strategy is to cure the defects in the old law so as to make the new law consistent with Judicial expectations.

Therefore, political parties must use the next session of Parliament to do two things: one, bring an amendment Bill, to delete the references to OBCs in S.6 of the CEI(RA) Act, 2006; second, bring another Bill to reserve 27 per cent seats in CEIs for the OBCs, with a specific provision saying that the creamy layer among the OBCs to get the quota benefit, only if the 27 per cent seats remained unfilled by non-creamy layer among the OBCs – a proposal originally put forward by the CPI(M), but opposed by other parties. Alternatively, the Government can bring a single amendment Bill, to introduce these changes in the existing Act, and ask the CEIs to await the passage of the Amendment Bill, its assent by the President, and the Gazette Notification of the Amendment Act coming into force.

To make it further fool-proof, the new Bill could also make it clear in the definition clause, that the OBCs are “as already determined and approved by the Supreme Court in the Indra Sawhney judgment” and as mentioned in the Central List for the public services, to be considered for purposes of the Bill. The National Commission for Backward Classes could be mandated by the Act to carry out a special sample survey, to be completed within a year, to verify the continuing eligibility of the various castes and communities in the Central OBC list, and to recommend inclusion and exclusion, on the basis of complaints on a transparent basis.

This must take care of the Court’s interim concerns, till it is finally heard in August. The CEIs must be directed to keep the 27 per cent seats open, till the enactment of the new statute, within a fortnight, as the promulgation of ordinance during a Parliament’s session for this purpose may not be proper.

Update: The Chief Justice of India, the reports suggest, has accepted the GOI’s plea for early hearing of the case, and has advanced it from August to May 8. But early hearing alone –whether by this Division Bench or by a Constitution Bench – will not help to satisfy the political class, and withstand the pressures of the academic calendar staring at the face of the OBCs. The Judiciary –whatever the outcome of the case – appears to be concerned more about the form rather than the substance of the compensatory discrimination policy. For the sake of preserving the substance under threat from this case, it may be in the interest of the OBCs, to finetune the form of the policy, and opt for certain face-savers as suggested here, in order to appear to be fair and just, even though the Government and the political class might be convinced about the merits of the substantive policy it is pursuing.

Jaffrelot on Mandal II and Hindu Nationalism

The "Idea Exchange" section of today's Sunday Express has an interview with the academic Christophe Jaffrelot, whose area of specialisation is Hindu nationalism. While the idea of having several journalists interview a single public figure on various issues is commendable, I think the value of this section would be immeasurably increased if the interviewee was allowed to air views more than the questioners. As this particular 'idea exchange' shows, the interviewers seem to say more than the interviewee, which seems to defeat the purpose of the whole exercise. Jaffrelot has many interesting things to say about the current state of Hindu nationalist politics, but given the topical nature of Mandal II, the initial questions focus on his views on Mandal II and his reactions to those questions are as follows:

"This reservation business, I find it very interesting that in a way we are back to the 1960s, when the Supreme Court was objecting to the Backward Commission reports coming from the states. If you remember the famous Karnataka vs Balaji case of 1963, when any caste-based reservation was not made possible by the Supreme Court. The Supreme Court changed its mind in the 1990s and the 1992 case was the most interesting one, when the court said sometimes caste can be a class and it cleared the way for everything and we could have caste-based reservations. And it seems this kind of progressive approach to the issue is not the position of the present Supreme Court. So we are back to a struggle of the judiciary and legislative wings of power. Let’s see whether the judiciary prevails, but if it does, then it means that the whole range of policies based on reservation will be slowed down and frankly speaking I think it’s one of the few corrections to what liberalisation is doing to societies these days. …

One of the things necessary is the redistribution to correct the widening of gaps between the upper classes and the lower classes. Because the grand theory that in India it will percolate and everybody will benefit from it is not happening. Maybe in the long run, but in the long run we will all be dead. … …

Well, so far, all backward classes commissions that have gone to the field have concluded that the most relevant variable to identify social and educational backwardness was caste. If things have changed, let’s have a survey and let’s check if caste is not relevant any more for identifying the lowest plebeians. But you can’t dismiss any policy on the grounds that there is no data because if there is no data you have to rebuild the data and not remain status quoists. And I am afraid caste is one of the major variables still."

It is interesting that Jaffrelot's views, to the extent they resonate with those of Omvedt on the need for a caste-based survey, seem to reflect the tendency of academics to emphasise the importance of formulating policies after carefully evaluating the background empirical data. As the debate over Mandal II wears on, at least part of its contested nature seems attributable to the reason that there is great disagreement about the basic facts at issue.

Update (April 23, 1.13 pm): In the comments section, V. Venkatesan points out that I misinterpret Jaffrelot's statement, and that instead of calling for a new caste-based survey, he was arguing that the government can be faulted for using caste as a basis for new quotas only if caste is perceived as being irrelevant in contemporary India, which is clearly not the case. I think this is a more nuanced reading of Jaffrelot's view, and I stand corrected. I can't help wondering how Jaffrelot would have reacted to a more specific question on the existing data regarding the proportion of OBCs in India. To me, the divergence of numbers projected by the Mandal Commission and the National Sample Survey Organisation (to name two studies on this issue) is problematic. This issue will no doubt form part of the arguments which are currently underway before the Supreme Court, and which will garner considerable attention in the days to come. Regardless of how that case turns out, the collection of solid data on OBCs in India is clearly an issue which needs to be studied closely going forward.

Mandal II: Marc Galanter Revisited

Marc Galanter’s classic, Competing Equalities: Law and the Backward Classes in India was published in 1984, a few years before the Mandal I controversy erupted in 1990. Many years have gone by, and in the context of the debate on Mandal II, one is tempted to know what would have been his scholarly analysis of the recent events. While an interview with him could bring out his insights on the issue, I decided to revisit one of his latest articles for the same. His article, ‘The Long Half-life of Reservations’ appears in the edited volume, India’s Living Constitution: Ideas, Practices and Controversies, (Zoya Hasan et.al, Permanent Black, 2002). Thanks to Mr.Abi, a regular reader of our blog, I am giving the link to this article here.

Galanter starts with a debate on the terminology to describe the policy. To some extent, he justifies his choice of “compensatory discrimination” in place of ‘affirmative action’. He is mildly critical of those who unabashedly borrow the American term, ‘affirmative action’, which began to be used in the early 1980s. He says: “On first encounter, we might dismiss this new terminology as yet another instance of uncritical adoption of American terms and of a wider and unreciprocated receptivity to American law. However, perhaps there is more here. Conveying at least an oblique reference to the American experience, it signals a tendency to regard Indian developments not as intractably unique, but as a complexly particularized instance of fundamental issues about disadvantaged segments of the population in ‘meritocratic’ democracies.” Gallanter refers to the fact that scholars from the U.S. and South Africa consider the Indian experience as a source of lessons that might be relevant in other settings.
The Supreme Court’s interim order of March 29 has been criticized for its uncritical acclaim for certain judgments of the U.S.Supreme Court. Galanter’s view only strengthens that criticism.
That apart, Galanter tries to grapple with the scope of the OBCs in this way:
Is the OBC category meant to include a wide middle band of castes and communities situated ‘above the Scheduled Castes and Scheduled Tribes, and excluding only prominently well-advantaged groups at the top? Was it intended to catch those whose advantages were far below the average, comparable in circumstance to the SCs and STs? Was the backwardness of the OBCs to be relative to the average or to the top? Mandal, he says, opts for the expansive view, and this has now been ratified by the govt. and the SC. (One wonders a further amplification of what he meant could help better understanding).
Gallanter’s understanding of Mandal I is expressed succinctly here: “Mandal employs caste in both senses. It uses castes as the units whose backwardness is going to be measured (along with jati-like formations among non-Hindus) and it proposes to use caste standing as the measuring rod, for determination of the backwardness of social units. The alternative to castes as units is to measure the backwardness of families or occupations or individuals; a substitute to caste as a measuring rod is to base eligibility on such criteria as poverty/ illiteracy. Obviously, he considered these alternatives imperfect.
Having said that, however, Galanter appears sympathetic to the Mandal II petitioners’ ground of attack against the CEI(RA) Act: lack of data. He says: “The appearance of precision in applying the Mandal Commission’s criteria is dissipated by a serious methodological flaw. These caste groups have not been counted in the census since 1931; the extrapolation of community population figures for half a century, on the assumption that all communities experienced equal growth rates, renders suspect many of the Commission’s findings about relative conditions”.
In the Mandal II debate, a question very often asked by the pro-reservation group is that whether the petitioners believe the OBC population in the country to be well below the 27 per cent. The petitioners so far have not answered this question; but Gallanter appears to have one. His articulation of the problem shows that the petitioners might be in fact concerned with the unsubstantiated, yet genuine fears that the scheme can be so designed to allocate seats over and above (italics his) those gained by the beneficiaries in open competition. Mandal clearly opts for the over and above method, rather than the guaranteed minimum (according to this, if a smaller number of beneficiaries are selected in open competition, the results are adjusted to add additional members of the beneficiary group upto the level of reservation.) “Curiously, so far as I know, the permissibility of these over and above reservations has not been the subject of constitutional challenge in recent years, although a generation ago several courts found them objectionable”, he says. He cites Mandal report as saying: “The chief merit of reservation is not that it will introduce egalitarianism amongs OBC when the rest of the Indian society is seized by all sorts of inequalities. But reservation will certainly erode the hold of higher castes on the services and enable OBCs in general to have a sense of participation in running the affairs of their country.”
Gallanter expresses his agreement with Mandal that compensatory discrimination cannot do everything. “Compensatory preference may be a viable policy for breaking barriers and forced draft inclusion of excluded groups;p it cannot secure a chimerical ‘equality of result’ throughout India’s social order.
A serious programme of compensatory preference, he says, must include measures for self-assessment and a design for it to dismantle itself. There can be no dispute with this view, only the timing of dismantling may be debated. His conclusion: “For all its failures in implementation, India’s policy of compensatory discrimination has been remarkable in its scope and generosity. It is time to upgrade its effectiveness while acknowledging the limits of what can be accomplished with it. “

Mandal II : The Likely Arguments

As the Supreme Court's hearing on April 23 of the Government of India's application for vacation of stay on S.6 of the CEI(RA) Act approaches, there is some clarity on the contending arguments likely to be advanced. The Central Government would plead for the reference of the case to a Constitution Bench of 5 Judges, in view of the binding nature of Indra Sawhney, under Art.145(3), as the Court is grappling with a substantial question of law and interpretation of the Constitution. The petitioners are likely to counter this argument saying Indra Sawhney refrained from dealing with the infirmities in the Mandal Commission Report or the States' lists, and therefore, nothing prevented this Division Bench from going ahead with the case. It will be therefore, interesting to see how the Bench resolves these contending issues. The Government will try to satisfy the Bench that its application is not a petition for review. If it is considered a review, then the Bench could dispose it off without hearing arguments.
Secondly, on the question of creamy layer, it appears politicisation clouded the Government's response to some extent. This blog learns that on April 6 at the all-party meeting convened by the Government, the CPI(M) specifically put forward the proposal that the 27 per cent quota for OBCs must be first reserved for the non-creamy layer, and if the seats remained unfilled for want of candidates, the reserved seats could be filled by the creamy layer of the OBCs. The proposal was bold, and it appeared as if the criticism against inclusion of creamy layer could be effectively blunted with this. Unfortunately, it appears, the rest of the political class rejected it without advancing a reasoned argument against it. The Government seemingly has no view on this proposal, and may not even oppose it if the Supreme Court introduces it in the Act, by filling the void.

"MASHELKAR COMMITTEE EFFECT" ON THE DATA EXCLUSIVITY DEBATE

In a piece titled “Pharma firms will have to wait a while for data exclusivity norms”, the Economic Times states:

“Call it the Mashelkar effect! The Satwant Reddy committee, which is examining whether MNCs should be allowed to guard their costly clinical data from local rivals, is unlikely to take a call on the issue in the near future. The decision has been taken considering the sensitive nature of the issue and the strong opposition NGOs and a section of the pharmaceutical industry recently put up against R A Mashelkar’s report on patent laws, which apparently favoured MNCs. Mr Mashelkar, who resigned from the technical expert group following charges of plagiarism, had said that not allowing patents on incremental innovation would violate WTO agreements.

While the Left parties want further tightening of the law, MNC pharma companies seek a more generous regime. The law was designed in 2005 as a compromise between the two, with a commitment from the government to get it reviewed by Dr Mashelkar. Sources said that the data exclusivity panel may not submit its report by May, when Mrs Reddy is slated to retire as the chemicals and fertilisers secretary. The government apparently does not want another controversy at this point of time by granting data exclusivity — a demand from big pharma companies — which would either delay the arrival of copycat versions of patented MNC drugs in the market or make them less price competitive. Besides, the panel is yet to arrive at a consensus with the health ministry, which approves new drugs, on the issue. It is understood that health minister A Ramadoss had opposed granting of data exclusivity at the April 10 group-of-ministers meeting on the new pharmaceutical policy.

Mr Ramadoss pointed out that nothing beyond protection against leakage or theft of data submitted to the government can be granted, sources said. Moreover, it is in the government’s interest to reserve grant of data exclusivity as a possible bargaining chip in the WTO negotiations later on. It is interesting to note that the former chairman of the committee and Mrs Reddy’s predecessor in the ministry, Pratyush Sinha, too, had felt at the end of his tenure that time was not ripe to take a view on the issue.”


As I’d noted in an earlier post, I made a submission to this Committee, arguing that Article 39.3 did not mandate “data exclusivity. The abstract is below:

“The appropriate standard of protection for regulatory data (pharmaceutical and agro-chemical) under Article 39.3 of TRIPS is the subject of considerable controversy. This paper finds that the minimum standard mandated by Article 39.3 is neither one of data exclusivity (as argued by the US and EU) nor one of 'permissive reliance' (as argued by Professor Carlos Correa and others). Rather the term 'unfair commercial use' in Article 39.3 in effect envisages a 'compensatory liability' model, whereby regulatory data that complies with the pre-requisites of Article 39.3 (i.e. it relates to pharmaceutical or agricultural new chemical entities, is undisclosed and its origination involves considerable effort) cannot be used by any person, including a regulatory authority that uses such information to approve another product, without some compensation being paid to the originator of such data. The paper discusses some examples of such compensatory liability models. The paper also finds that current Indian law does not comply with Article 39.3.”

Here again, one has to bear in mind that there is a difference between a provision that is TRIPS compliant and a provision that furthers “national” interest. In other words, something that is TRIPS compliant need not always be in national interest and vice versa. The US failure to change its copyright law to comply with the WTO panel decision in the copyright “homestyle exception” case is a clear example—where domestic pressures have constrained the US government and prevented it from giving effect to this WTO ruling. India could therefore opt to do the same—i.e. to ignore any prospective WTO ruling in this regard that holds that Indian law does not comply with Article 39.3.

In any case, if the standard under Article 39.3 is clearly not one of data exclusivity, I’m not sure that the US or EU would risk bringing an action in this regard. This would compromise efforts of the US government in claiming that Article 39.3 demands "data exclusivity" and ratcheting up data protection standards through the clever use of FTA’s. Secondly, if a panel ultimately finds that it entails compensatory liability, this is a worse blow for the pharmaceutical industry than having a law (such as the current one in India) that merely prevents disclosure of data. Compulsory licensing is a term makes multinational pharma companies squirm. Not least because a compensatory liability model or a compulsory licensing model would force them to disclose “costs”. And given the oft repeated 800 million dollar pill cost (around which a number of the pro protectionist arguments are based), I’m not sure that they would want to divulge any data that could be subject to public scrutiny—as many think that this figure is not an accurate one.

Therefore, the smart thing for India to do would be to assess as to what is in “national interest” here and not worry about the TRIPS implications at this stage. Of course, India is also free to bargain away this TRIPS flexibility in Article 393. away for concessions in other fields (such as more access to Western markets for Indian goods/services and more international norms for biodiversity/traditional knowldege, an area which is of keen interest to India). Perhaps this is what the Economic Times article hints at when it states:

"Moreover, it is in the government’s interest to reserve grant of data exclusivity as a possible bargaining chip in the WTO negotiations later on."

Gail Omvedt on the need for a caste-based census

Today's Hindustan Times has a column by the sociologist Gail Omvedt who argues that the recent stay order on OBC quotas and the government's response to it, point to the need for a caste-based census in India. In her piece, she uses the example of race-based census surveys in the U.S. to argue that they need not necessarily produce social divisiveness. In the course of making her case, she also provides interesting insights on educational testing in India:

"Recognising the existence of race, like caste, is not the road to ruin, but is a necessary prerequisite for dealing with, and resolving, the issue.

Those who argue for ‘merit’ ignore the fact that merit is not linked to caste. Here, biological inheritance and social conditioning have to be carefully differentiated. The reason that people of ‘higher’ caste origin perform better lies in their environmental advantages, which range from the fields of education, socialisation to economic well-being. ... ... ...

In other words, IQ tests reflect a degree of environmental advantage and socialisation, even ‘learning’ about taking IQ tests. Even at an early age, this environmental difference is there. In many European countries, the average scores had risen because the scores of the lowest deciles rose faster: in other words, the spread of mass education had made a difference.

In India, there has been no such extensive academic and general intellectual debate about test scores, heredity and environment; only a good deal of frantic and self-justifying outpourings. But the examinations here, as well as interviews, are much less objective, much more culture-bound than IQ tests. Education is much more unequally distributed. Denial of caste inequalities has been less reasonable, more ingrained, more emotional.

In comparison with race, though, it is superficially easy to avoid dealing with caste: it is not so easily visible as race is, though both are equally social and not biological factors. There is a good deal of social interaction directed at understanding the other’s caste, but these are less obvious and visible. As a result, a superficial ‘passing’ is much easier, particularly for employment, if not for more personal issues such as marriage. Yet the scars of caste remain, of this there is no doubt. What is needed is more informed discussion and debate, not a closing of eyes, ears and mouths to mimic the monkey reaction to reality.

There is possibly little change since the 1931 census, which gave extensive information about caste. However, there is need for investigation: have some OBCs really become ‘affluent’? Aside from a few of their members, this is doubtful. The very fact that these are mostly rural-based groups, and the rural economy is in recognised crisis, should indicate that the average has improved. There is no point, however, in endlessly arguing. We need the data.

How does one handle a caste-based census? There has been, again, a lot of talk about the complications of the matter. The solution is simple: let everyone self-identify his or her caste. Those who want can say ‘no caste’ (in fact, this itself would be an important data from the census). Those who are out of mixed marriages or confused about their caste in anyway can also say this. A panel of experts at the State level can then make broad classifications out of the responses. There is, in other words, no great dilemma about how to do it. It only takes social will."

This may also be a good time to recall the 1999 debate between Omvedt and others on the left which was occassioned as a result of Arundhati Roy's involvement with the NBA. Though the debate seemed to be accompanied by a considerable degree of rancour, I for one found the content of the debate very instructive. Here is the open letter sent to Arundhati Roy by Gail Omvedt, and here is a link to the host of responses it elicited, including this from Ashish Kothari. This debate has continuing relevance for developmental issues in India.

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.

Mehta's assessment of Supreme Court politics in India

The April 2007 issue of the Journal of Democracy has a feature on "India's Unlikely Democracy" which includes an article by Pratap Bhanu Mehta titled "The Rise of Judicial Sovereignty." Mehta's piece reiterates some of the analysis that he has advanced in his previous writings, and has the advantage of being a short and succinct overview of the role of the judiciary in post-independent Indian politics. Apart from its helpful descriptive analysis, the article contains many of Mehta's typically provocative and insightful comments. A sampling of these is included here, but the article as a whole is a good resource for those seeking an understanding of the important role played by the judiciary in India. Mehta makes the important point that

"[a]lthough most studies of Indian politics pay almost no attention to the courts, disputes between the judiciary and the other two branches have been as important a fact about Indian political life as any."

Mehta asserts that the Indian Supreme Court's body of work is characterised by what he calls "three profound ironies" which he describes as follows:

“First, even as the nation’s most senior judicial panel engages in high-profile PIL interventions,
routine access to justice remains extremely difficult. India’s federal judicial system has a backlog of almost twenty million cases, thousands of prisoners are awaiting trial, and the average time it takes to get a judgment has been steadily increasing. There is a saying in India that you do not get punishment after due process—due process is the punishment.

The second irony is that even as the Supreme Court has established itself as a forum for resolving public-policy problems, the principles informing its actions have become less clear. To the extent that the rule of law means making available a forum for appeals, one can argue that the Court has done a decent job. To the extent that the rule of law means articulating a coherent public philosophy that produces predictable results, the Court’s interventions look less impressive.

The third irony is that the Court has helped itself to so much power— usurping executive functions, marginalizing the representative process— without explaining from whence its own authority is supposed to come. In theory, democracy and constitutionalism can reinforce each other, but in practice their relationship is complex and even problematic.

The question of where one begins and the other ends has taken on global significance in light of the widely observed trend toward “postdemocracy,” according to which representative institutions are losing power to nonelected centers of decision making the world over. In India, unelected judges have effectively replaced the notion of the separation of powers among three governmental branches with a “unitarian” claim of formal judicial supremacy. The concept of the rule of law is supposed to legitimate this claim, but whether judicial supremacy— either as such or as exercised by the Indian Supreme Court—actually upholds the rule of law remains an open question.”

For me, the most insightful and simultaneously provocative part of the article was where Mehta makes the following claim:

"It is no accident that Indian constitutional law has been relatively unstable, or that the same courts which appear assertive in some areas seem weak in others: strong enough to spark the passage of many constitutional amendments meant to confound judicial rulings, but so easygoing
that no major politician has ever been charged in any of the numerous corruption cases that the Supreme Court has been supervising for years. The legitimacy and power that India’s judiciary does enjoy most likely flow not from a clear and consistent constitutional vision, but rather from its opposite. The Supreme Court in particular has given enough players enough partial victories to leave them feeling as if they have a stake in keeping the game of political give-and-take going. This, more than any ringing defense of principle, is the Court’s signal contribution to Indian democracy. (Emphasis added)."

My immediate reaction was to find this analysis persuasive, and I would be curious to know how others who have studied the Court's work would react to such an assessment of its functioning. The one worry I have with such an interpretation, however, is that it seems to suggest that the Indian Supreme Court is a homogenous institution, whose members work in concert with each other in designing the gameplan of the organisation and that this 'strategy' was conceived and implemented by the institution as a whole. The practical reality of a 26 member institution whose membership is constantly in flux, and which sits in benches of 2 or 3 judges must make us a bit wary of accepting Mehta's analysis uncritically. This is all the more so because Supreme Court judges are in theory supposed to work independently of each other, and each case is supposed to be decided on its own merits, by judges who have been randomly assigned to the bench deciding the particular case. The idea that judges adopt an overall strategy towards cases of a certain type, or that they discuss with other judges (who are not part of the particular bench) the approach or strategy that they should adopt in reaching a certain decision, would offend at least some of the accepted understandings about the judicial role. While the Court does have an overall institutional strategy on some issues, the fact is that it does not have very much control over its docket (unlike say the U.S. Supreme Court which controls access through grants of certiorari). While the Indian Supreme Court can control its docket (by deciding, for instance, not to grant SLPs in a certain category of cases) being simultaneoulsy a general court of appeal, its ability to do so is hampered.

I also worry that this analysis may lead to people becoming sanguine about individually egregious decisions of the Court, as they may think that the particular decision is just a part of a larger trend of cases that the institution is focusing on. This may lead, also, to a dilution of attention that should be focused on the justificatory reasoning advanced in support of each individual decision.The fact remains that given the nature of adjudicatory processes, decisions are made on an individualised, case-by-case basis, and the justification advanced for every decision should be capable of standing alone, instead of being understood as part of some overall utilitarian calculation.

The individualised character of litigation and adjudicatory processes makes the Court different from other political actors which can make policy decisions in the abstract. I believe that Mehta's analysis, while compelling as a general hypothesis, does not pay sufficient attention to this aspect of the Supreme Court's functioning.

Practical problems with the Special Marriages Act

Coomi Kapoor has a column in today's Indian Express which draws on her experiences to highlight serious problems with the implementation machinery of the Special Marriages Act, as well as the mindset of those who are charged with enforcing it. Her arguments are compelling and the entire piece makes a convincing case for reform. Here are extracts from the piece:

"In a conservative society like ours mixed marriages generally raise hackles and bring out society’s bestial side. Primeval passions are aroused when people are led to believe that one religion is asserting hegemony over another. Every now and then one reads about eloping couples who opt for conversion in order get married, leading to heightened communal tensions. The way it works in our country is that if a marriage has to be solemnised speedily and without red tape, both bride and groom have to be of the same religion. Conversion is an easy way out. At times, for convenience, both even convert to a third religion.

So why don’t couples from different religions apply to get married under the Special Marriage Act 1954, which was specifically drafted with people like them in mind? I am something of an expert on the way the legislation works, having gone through the cumbersome procedure twice for my two daughters, who chose partners from different faiths. Even in the national capital, the act is administered in a manner so that as many obstacles as possible are placed in the way. You either end up hiring a lawyer familiar with the working of the marriage office or muster enough determination, time and patience to go through the lengthy rigmarole.

... ... ... At the marriage offices in Delhi it is usually the clerks who interpret the law since they have been at the desk much longer than the young IAS officers who are additional district magistrates and burdened with numerous other duties, from riot control to elections. The trick in getting your way is not to be intimidated by the clerk, but to out-shout and out-reason him, quoting the relevant law. ... ....

When applying for permission to get married under the act, you have to work against a deadline, so that the considerable paper work is completed in at least a month, and not more than three months, before the scheduled date of the wedding. Be prepared to be scrutinised and sneered at by sceptical clerks and marriage officers who believe that there has to be something dubious about your intentions or you would not be in their office in the first place. A colleague recalls how minutes before her wedding the marriage officer called her aside, bolted the door and told her she was making a terrible mistake. He laboured under the delusion that his role was that of a marriage counselor, not a marriage officer. When I presented my daughter’s fiancé’s documents with the column for religion left blank, the marriage officer took great offence and snapped that he had never heard of anyone doing such a thing in all his years.

One of the most retrograde provisions of the act is the column enquiring about religious affiliation. Since the entire form — with addresses, photographs and religious affiliation of the couple — is pinned on the notice board for a month, couples from different religions become easy prey for fundamentalist outfits who demonstrate outside their homes shouting slogans. The need for publicising the details a month in advance is so that anyone can voice objection to the marriage. In contrast, for a religious ceremony no notice whatsoever is required. And no elementary verification is considered necessary of the pundits, maulvis and granthis who officiate. The provision (19) in the Special Marriage Act, which states that those who marry under it, whether Hindu, Sikh, Buddhist or Jain, will effectively be severed from their families, implies that they are to be penalised for marrying outside their religion.

Bigotry and religious prejudice can be eradicated from society only when the government leads the way. But when the guardians of the law themselves have ambivalent feelings on the subject, is it any wonder that eloping couples almost invariably keep their distance from the marriage office and the Special Marriage Act?"

Renewing focus on protection of whistle-blowers in India

An editorial in the current issue of the EPW seeks to highlight the importance of a Bill that aims at protecting whistle-blowers in India. It recalls the high-profile cases of S. Manjunath and Satyendra Dubey, and provides details of the bill, while reiterating the need to push for enactment of a law on the issue. In making its case for such a law, the editorial argues:

"[A]s the fate of whistle-blowers round the world shows, instead of the offender it is the complainant who is threatened andvictimised. The Dubey and Manjunath cases took on an urgency because they were killed and alumni from elite educational institutions kept the issues alive with the help of the media. There are other whistle-blowers who do not lack in courage, but are worn down by the humiliating harassment that the corporate powers and public corporations can mete out to their employees. It is such employees who need the protection of the law."

Quota debate : Need for Clarity

As the quota debate continues to rage in the media, evidence of gaps in understanding the issue has come to the fore even among well-known observers and recognized experts.
Today’s Times of India carries the article by Justice Rajindar Sachar, who has just submitted a report on the status of Muslims, as the chairman of the high-powered committee appointed by the Prime Minister. According to Justice Sachar, the Supreme Court’s Bench in the interim order has questioned the basis of the 27 per cent quota for OBCs, suggesting that the percentage actually could be less, as it was based on the flawed perception, that their population could be more than 27 per cent - whatever figure you take whether it is 52 per cent arrived by the Mandal Commission, or the 61st round of the National Sample Survey Organisation which put the figure around 41 per cent.
If you read the Interim order closely, the Bench is not hinting that the OBC population might be less than 27 per cent. It seems to share the petitioners’ view that Parliament intended fresh determination of OBCs for the sake of identifying the beneficiaries of the Act.
The relevant definition, at clause 2(g) of the 2006 Act, reads as follows:
Section 2 … (g) “Other Backward Classes” means the class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government.
The petitioners argued that there has been no such determination, nor has any methodology of identification been laid down in the Act, and therefore reservation for OBC under clause (iii) of Section 3 cannot be implemented or even started.
The Government rejected the argument, saying the lists of OBCs identified on the basis of social and educational backwardness have already been determined and notified by the Central Government in the Ministry of Welfare (now named as Ministry of Social Justice & Empowerment), which is the nodal Ministry in charge of the subject. These lists are State-wise. Once issued, these State-wise Lists continue to be in force and are binding for any or all purposes, subject to modifications, deletions, additions from time to time in accordance with the National Commission of Backward Classes Act, 1993 and in the light of directions of this Hon’ble Court in Indra Sawhney. These State-wise Lists, already notified by the Central Government, are and have to be automatically and naturally followed by every Ministry and other Central Authorities for any or all purposes pertaining to SEdBC/OBC such as making provisions in the Five Year and Annual Plans for development, scholarships, developmental loans by the National Backward Classes Finance Development Corporation, etc. apart from appointment to civil posts and vacancies reserved for them under any Ministry or Authority or body of Central Government. The same State-wise Lists already notified by the Government, with updating from time to time on the basis of any inclusions or exclusions or modifications from time to time as per law are also naturally followed for the present purpose of reservation for SEdBC/OBC which has been provided in the impugned Act. The interim order is silent on why this explanation of the Government is not satisfactory.
Instead, the Bench appeared to be keen on a debate on the interpretation of Section 2(g) of the Act. Did Parliament intend this `determination’ to be freshly made, as claimed by the Petitioners? Although the Bench left the question unanswered, it did not leave any doubt regarding where its sympathies lie. But if you take the intention of Parliament as a guide to interpret this provision, it is clear that Parliament did not at all intend a fresh determination, as a fresh determination would have meant keeping the Act in abeyance for quite some time. Had it been the intention, Parliament would not have unanimously resolved to enact this legislation, giving it utmost priority, before the academic session starts.
Nor do the plain words of the statute –read as they are – leave any doubt that Parliament did not want to wait for a fresh determination of OBCs to take place. In other words, the petitioners not only raised the issue of the correct OBC population in the country, but also doubted the correctness of the existing OBC determination, apparently suggesting that the current list includes many classes, which ought not to be there.
I share the view that we need a periodical survey to answer complaints of wrong inclusion or exclusion of certain classes from the current OBC list. But that does not make the existing list completely untenable. Even in Indra Sawhney, Justice Jeevan Reddy makes the point that the failure to appoint a Commission prelude to identification of OBCs itself does not make the inclusion of a class in the list untenable (paragraph 119). The example he cited was Goa, where the State Government included certain castes in the OBC list without a Commission's report to guide its decision.

He said:

"Even if in one or two cases (e.g., Goa), the list is prepared without appointing a Commission, it cannot be said to be bad on that account. The Government, which drew up the list, must be presumed to be aware of the conditions obtaining in their State/area. Unless so held by any competent court - or the permanent mechanism (in the nature of a Commission) directed to be created herewith holds otherwise - the lists must be deemed to be valid and enforceable.
The criteria evolved by Mandal Commission for defining/identifying the Other Backward Classes cannot be said to be irrelevant. May be there are certain errors in actual exercise of identification, in the nature of over-inclusion or under- inclusion, as the case may be. But in an exercise of such magnitude and complexity, such errors are not uncommon. These errors cannot be made a basis for rejecting either the relevance of the criteria evolved by the Commission or the entire exercise of identification, It is one thing to say that these errors must be rectified by the Government of India by evolving an appropriate mechanism and an altogether different thing to say that on that account, the entire exercise becomes futile. There can never be a perfect report. In human affairs, such as this, perfection is only an ideal - not an attainable goal. More than forty years have passed by. So far, no reservations could be made in favour of O.B.Cs. for one or the other reason in Central services though in many States, such reservations are in force."

In fact, his view appeared to be similar to my earlier view expressed in this blog – only to be contradicted by Mr.Vivek Reddy on this blog in an earlier post– that if the Government, by instinct, and impulse consider certain castes as backward, the view should be largely respected. Although the way I put this made it appear as unreasonable, if you look at it again in the context of what Justice Jeevan Reddy wrote in the context of Goa, you could see some force in the argument. Again the Government’s perception of likely social unrest if certain castes are not in the OBC list need not be considered in a vacuum, but has to be understood in the larger context. Earlier I had cited the 1921 experience of Mysore State granting reservations for backward classes; I understand that even this decision was preceded by Justice Miller Commission, which received representations from backward classes, to determine their eligibility for inclusion, although it might not have carried out a survey as such. Having said this, I am not at all against the usefulness of data or surveys to throw more light on the status of backward classes. But their absence – for whatever reasons – must not be used as an excuse to delay social justice.
The second point which Justice Sachar made is about creamy layer. According to him, since it is accepted as part of the Constitutional scheme, let the Government exclude the creamy layer beneficiaries from the purview of the Act, and await the Court’s full hearing on this matter.
It is not as if the Bench is not aware of the Government’s arguments against excluding creamy layer under the Act. The Bench is apparently not convinced, even though it has not given any convincing reasons for rejecting the Government’s stand. Whatever the justification, I see force in Yogendra Yadav’s suggestion – in the Times of India – that the creamy layer might be included within the 27 per cent quota, but they should be given the benefit, only if there were not sufficient non-creamy layer OBCs to fill the quota.
Asking the Government to exclude the creamy layer among the OBCs from the Act’s beneficiaries just in order to secure the Court’s interim clearance – as Justice Sachar has argued – is not a sound proposition. The purpose of reservations in the Indian context is not affirmative action, but distributive justice, and ensuring a fair degree of diversity and pluralism, apart from adequate representation – whether it is public service or educational institutions. If you keep on removing the creamy layers every year, then a stage will come, when there would be no SEBCs at all, and the very logic of extending reservations to SEBCs would be defeated, and the OBCs would be back to square one, competing with unequals in the rest of the society. I feel the creamy layer debate so far is very superficial – in terms of how judiciary understood it – and there is need for greater clarity and understanding of its various nuances.

Judges' Tenure: Need for rethinking

Can we find remedy for the ills of our judiciary by changing the tenure of Judges of Higher Judiciary? This article in Deccan Herald here argues that it can make a difference. And I tend to agree with the author. We need to compare the tenure of Chief Justice Chandrachud (the longest tenure a CJI ever had], with that of others to know what contribution a longest serving CJI could make. Alternatively, we should also bring out the extent of damage that a short-tenure CJI could cause to the institution. In the past, we have had CJIs for just 14 days, or 30 days, and there were always controversies surrounding the cases heard and disposed by them, not on merit, but on extraneous considerations. The author, N.Haridas, is unhappy with the seniority rule, because in his view it has led to selection of mediocre persons as Judges. The Emergency aberration notwithstanding - when India witnessed a phase of committed judiciary, having broken the seniority rule, Haridas says the earlier system wherein seniority was not emphasised, is still worth a try. Only recently in our blog, our co-bloggers, Arun Thiruvengadam and Vivek Reddy were discussing the deteriorating quality of judgments of our Superior courts, citing an article written in EPW by A.G.Noorani. Part of the reason, perhaps is that our retiring Judges are in a great hurry to write their judgments of cases heard by them, before they retire, and this deadline pressure leads to compromise with objectivity, balance, and consistency. If the Judges of the High Courts and Supreme Court have permanent tenures without retirement (as in the U.S.), will it not be an answer to many of these ills? A fixed tenure for the CJI is desirable to ensure proper leadership and administrative qualities in a CJI, but simultenously, we need to remove the retirement age-limit for the Judges, to make them truly independent, and make them less dependent on Executive, for post-retirment benefits.