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.