Chief Justice Verma's views on recent Supreme Court decisions and trends

Over the last two days, the Indian Express has carried excerpts from a public lecture recently delivered by Chief Justice J. S. Verma. The two parts of the lecture as carried in the IE are available here and here.

The lecture is unusual in that Justice Verma has been extremely forthright (for a judge, that is) in sharing his views on some recent controversial decisions. One should recall that Justice Verma authored some of the prominent decisions of the Court during the 1990s which attracted criticism for being 'activist' and beyond the powers of the judiciary. Interestingly, much of his lecture is directed at more recent decisions which he feels are subject to the same line of criticism.

After spending the first part of his lecture outlining his general views about the proper role of the judiciary, Justice Verma turns to cases that he considers may be problematic as per his analysis. Justice Verma differentiates between cases that he sees as justifiable (a category within which he includes the Supreme Court's intervention in forest matters, and the Visakha case), and those that have "legitimately" attracted criticism. I focus, in this post, on the latter category, and include extracts from his lecture which focus on this line of cases:

"Instances are cited of judicial intervention in matters entirely within the domain of the executive, including policy decisions. If the judicial dictate is only to compel the executive to perform its function, without taking over the task itself, it cannot be faulted because the power to issue a ‘mandamus’ is vested in the judiciary. The scrutiny is needed only of the acts of the judiciary seen as transgressing the dividing line.

Some instances attracting legitimate criticism need mention to illustrate the point. Judiciary has intervened to question a ‘mysterious car’ racing down Tughlaq Road in Delhi, allotment of a particular bungalow to a judge, specific bungalows for the judge’s pool, monkeys capering in colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy traffic etc., under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.

Another category relates to illegal constructions or encroachments on public lands and in the Lutyen’s Bungalow Zone in Delhi. The judiciary has stepped in, not only to direct the designated authorities to perform their duty, but it has also taken over the implementation of the programme through non-statutory committees formed by it. The judiciary is controlling the large scale sealing operations of commercial premises in unauthorised areas of Delhi."

The implications of the judiciary’s involvement in this process, which is essentially an executive function, are wide. Several questions arise: What and where is the remedy for any illegality committed in these operations? Are there judicially manageable standards for this exercise? The judiciary having no machinery for implementation of the orders, what happens in the event of refusal or failure of the executive to co-operate? Has the judiciary kept in view the provisions of the general law, particularly the Specific Relief Act which provides that in certain circumstances the discretionary relief must be refused, even though it is legal to grant it? Without considering these and related questions, judicial intervention may attract the vice of ad hocism or tyranny. It would then suffer from the defect of want of juristic base to have precedent value. Inconsistency of decisions in such matters resulting in discrimination is another aspect. Want of legitimacy of judicial intervention is the casualty. These pitfalls must be avoided."

Later on, Justice Verma offers specific reasons why he thinks the recent decisions of the court in the Jharkhand case and the 'cash for queries' case are problematic:

"Jharkhand order

The recent Interim Order dated 9 March 2005 made by the Supreme Court in the Jharkhand Assembly case has been subject to considerable adverse comment, not only by the Speaker of Lok Sabha, but also by some eminent lawyers and jurists. With due respect, I am inclined to agree with them on this issue. By its order, the court fixed the date for the session of the legislature, its one-point agenda to have a floor test; issued directions to the speaker relating to conduct of the proceedings; and ordered video-recording of the proceedings with direction to send a copy to the court.

It is sufficient to say that the court overlooked the earlier binding decisions of larger benches laying down the parameters of separation of powers between the judiciary and the legislatures relating to immunity of the proceedings from judicial review. It was not a matter amenable to judicial intervention. If the court felt that ‘judicial hands off’ was not warranted to save the democratic process, it could have asked counsel to take instructions from the governor and report the same day whether he would prepone the date of the session and direct the floor test. I am sure the governor would have taken the hint and done the needful making court intervention unnecessary. That would have been an act of judicial statesmanship. I do hope the Supreme Court itself would soon correct the aberration of the above orders in the Jharkhand and UP cases.

‘Cash for query’ case

This is another sensitive area. It continues so, because of the failure to codify the privileges as required by Articles 105 and 194. Naturally, whenever there is a claim of a new privilege that is not specifically recognised, the need is to interpret the Constitution to decide that question. Once a privilege is so recognised, the exercise of that privilege is to be controlled by the legislature, immune from judicial review. Supreme Court being the final arbiter of the meaning of the Constitution, decision on the question of existence of the privilege is in the domain of the judiciary; and, thereafter, its exercise is within the legislature’s domain. This is the basic constitutional premise.

The recent judgment dated 10 January 2007 in the matter relating to expulsion of some members of Parliament for taking bribes to put questions in Parliament, labeled as ‘cash for query’ case, has evoked a mixed response. The court held that legislatures must have the power to expel members for misconduct as a self-cleansing measure. Thus, this privilege was upheld rejecting the challenge of absence of such a power in the House. This has been duly acclaimed.

The other part of the judgment holding that legislatures cannot claim immunity from limited judicial review of the exercise of that power causes concern. Howsoever limited be the judicial scrutiny, availability of judicial review in that area erodes the separation of powers and immunity of the proceedings asserted by the Constitution. I do hope the court will have occasion to re-examine this part of the judgment, and it will remove the area of potential conflict."

As I said before, the contents of the lecture are intriguing not because they contain startlingly new insights - indeed, many of the points raised by Justice Verma have been advanced by several commentators (although perhaps not in the space of a single, overarching piece). What makes this noteworthy is that a former Chief Justice of India has felt obliged to make public comments about these cases, and in the context of an academic lecture. Such a trend is to be welcomed, because such discussions will inevitably raise the quality of judicial decisions in future, as courts become more sensitive to the way their decisions are perceived, and try to meet such concerns before they decide future cases.

I also think it is important that Justice Verma's views in turn be subjected to strong scrutiny, matching the spirit which presumably motivates his comments. I for one am unsure whether environmentalists and activists for women's rights would agree with Justice Verma that the Forest and Vishakha cases are unqualified successes for the respective movements. I am also not entirely certain that Justice Verma (who, it should be recalled, was the author of the S.C.A.O.R.A opinion that resulted in judicial appointments in India being under the control of the judiciary itself, and has been cited as the most egregious instance of judicial activism in recent years) has clearly laid out the boundaries between justifiable judicial actions and those that would amount to adventurism. The challenge for students of constitutional law is to evolve criteria which enable us to assess the differences between these two categories by some concrete (or objective) means. The difference cannot simply be whether we like particular results in particular cases, or think that some other course of action was more desirable in such cases.

In Defense of the SC order on OBC quota

Let me begin my first blog by thanking Arun and Vikram for allowing me to join the blog team. I cannot think of any other place – print & electronic – where there is more lively and active discussion of Indian Constitutional Law. I hope I can make a useful contribution.

Mr. Venkatesan in his rejoinder to my comments makes a strong attack on the Supreme Court stay order. I am sufficiently provoked by his incisive comments to posting this response. In his comments, Mr. Venkatesan has raised issues which go beyond his previous post. Given the nature of his comments, I thought the best way to do justice was to give my detailed justification for the SC order on OBC quota. Apologies if this response was long

Before I respond to Mr. Venkatesan’s post, let me outline where I stand on OBC quota.

Our Constitution commands the creation of an egalitarian society where everyone gets the freedom of opportunity for social and economic advancement. To that extent quotas may be a useful instrument for achieving that objective, provided they are structured in the right way and targeted to the right audience. The executive should certainly have flexibility in designing these programs, but not to the exclusion of an independent judicial review, which is necessary to ensure that these programs are targeted to the right audience. I also believe that the Constitution commands the creation of a casteless society. I understand that caste is a social reality that cannot be wished away easily, but reinforcing it through caste centric quotas—without any investigation into a caste-neutral mechanisms which can reach the same audience—is certainly not the right path for the creation of a casteless society. My biggest concern with caste centric programs is that it facilitates identity politics. It enables the political leadership to use caste as proxy for performance. It creates a vested interested in continuing the caste system. The best example is probably UP where you “don’t caste your vote, but vote your caste.” The political class is not going to stop these programs because they have built a constituency around it. The Supreme Court in Indra Sawhney had a rare opportunity to stop this program, but unfortunately the Court ended up blessing these programs.

The key point which I intend to make through this post is that the government is bound by the entire ruling in Indra Sawhney. It cannot accept those parts which favor it and discard the inconvenient parts.

Requirement of objective material.

Mr. Venkatesan in his rejoinder undermines the requirement of providing data to support quotas. He asserts that “surveys conducted on a large scale are not the answer to determine whether a caste is SEBC. The answer has to be found in anthropology and sociology, not in statistics.” In his opinion, “if the modern-day governments instinctively, and by way of impulse and formal and informal studies consider a caste as backward, such consideration can be largely respected”

I find it difficult to share his opinion given unambiguous language in Indra Sawhney. His assertion belies the compromise formula evolved by the Supreme Court in Indra Sawhney in 1992. Some background explanation is in order to explain this point.

In Indra Sawhney, the legal legend Nani Palkhivala rightly contended that caste is a constitutionally prohibited criterion in Article 15(2), Article 16 and Article 18 and it cannot become a permissible criterion when it comes to identification of “backward class”. On the other hand, Union of India contended that caste has to be the dominant consideration. Three judges accepted Mr. Palkhivala’s contention (Justice Thommen, Kuldip Singh and R.M. Sahai). Justice Pandian rejected it. Justice Jeevan Reddy, speaking for four judges, stuck the middle ground. He did accept the government’s contention that caste being a social reality can be used to identify backward classes, but he hedged it with the following qualifications and it is these qualifications which acquire importance in this case. These qualifications are: (The paragraph nos are from 1992 Supp (3) SCC 217

a. The authorities can adopt any reasonable method to identify backward class. It can begin with caste, but it cannot be solely based on caste.

b. While identifying backward class, it must be done with reference to the entire population of the state. Para 796-797—(“any method so long as it covers the entire populace. …The central idea is that it should cover all groups, classes in society.”) See Para 782—(“ultimate idea is to survey the entire populace”); Para 782—(“effort should be to consider all available groups and classes, in whichever order one proceeds”);

c. An assessment of “backwardness” has to be made in comparison with the rest of the population of the state. Para 795—(“backwardness being a relative term must be judged by the general level of advancement of the entire population of the state.”)

d. A periodic revision has to be held.

e. Any approach used to identify backward classes has to be “fair and adequate” (Para 783)

f. Any determination of backwardness has to be based on objective social criterion. (Para 737) (“Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. … the exercise is an objective one. Certain objective social and other criteria has to be satisfied before any group or class of citizens could be treated as backward.”)

g. Creamy layer has to be excluded (Although this observation was made in the context of 16(4), it was subsequently extended by the Supreme Court judgments to Article 15(4) also)

h. Judicial review is always available to ensure that the assessment of backwardness is done in an objective manner.

This is a carefully hedged formula which was evolved in Indra Sawhney. If the govt want to use caste as a basis for identifying “socially and educationally backward class”, it also has to implement these processes which have been designed to identify backward class. Mr. Venkatesan cites the first instance of reservation in 1902 and 1921 where the “princely states did not go about collecting data, but responded immediately to the demands, in order to prevent social unrest” But between 1921 and 2007, we had a Constitution which does not contemplate quota on the basis of social unrest, but rather on an objective determination of backwardness.


What kind of data is required to show that OBC are “socially and educationally backward”?

Mr. Venkatesan poses a question to me as to what kind of data is required to show that a particular caste constitutes a backward class. He says “large scale surveys” are “naïve” and they would not lead to “fool-proof results”. Neither a large scale survey nor a fool-proof material is required.

The Supreme Court in Indra Sawhney has given the broad methodology for identifying backward classes. Under this method,

1. The government has to lay down the criterion for identifying backwardness. These criterion have to be fair and adequate.
2. Based on the criterion, the government has to conduct a survey of the population.
3. The government then has to make an assessment as to whether a particular caste/community is backward compared with the rest of the population.
4. This survey has to be held once in 10 years by an independent backward classes commission.

Does the survey need to go and each and every village? Not necessary. As long as the government identifies fair and adequate criterion and uses a reasonable sample, the court will not interfere. Does the sample needs to be perfect? Again not required.

In Indra Sawhney, Justice Jeevan Reddy laid down the “best efforts” test – the commission has to use its best efforts in identifying backward classes. It need not collect all the particular materials and reservations. (“In spite of best efforts that any commission may make in collecting materials and datas, its conclusions cannot be always scientifically accurate in such matters. Therefore, the proper approach, in our opinion should be to see whether the relevant data and materials referred to in the report of the Commission justify its conclusions.”) (relying on State of AP v. Balram, AIR 1972 SC 1375)

Isn’ t this elaborate process time consuming and detrimental to the interests of backward class?
Yes. It is time consuming and that’s why it is supposed to be done once in ten years. This process is required because “backwardness” suggests a relative state of affairs. A community can be identified as “backward” only in comparison to the state of the general population. Identifying the deserving “backward classes” is important because it ensures that quota benefits reaches the correct audience. The government just cannot “instinctively and by way of impulse” identify backward classes. Such unrestricted freedom could lead to perverse results and goes against the approach laid down in Indra Sawhney

Should not the same methodology be followed for SC and ST?

Mr. Venkatesan asserts that the if this requirement for data and periodic survey is applied for OBC, there is no reason not to extent it to Scheduled Castes and Scheduled Tribes. I differ. There is a strong conceptual difference between SC/ST and backward classes when it comes to quotas.

First, as I pointed out earlier, “backwardness” is a relative state of affairs. A community is backward only with reference to the entire population and that’s the reason for a periodic survey of the population and objective material before a community or caste can be assessed as backward. But SC/ST are a fixed class of communities. Their composition does not change based on the rest of the society. Even if a society advances they will be still be entitled to quota. But backward classes are entitled to affirmative action as long as they are backward, but once they move out of that category, they are no longer entitled to reservation. Only on the basis of a survey, one can determine who should be included and excluded among backward classes. This is never done for SC/ST. The only exception where a survey of SC/ST population is required is for the purpose of Article 16(4) which requires an “adequate representation” in proportion to the population. The objective of that survey is not an enquiry into the status of SC and ST, but rather an inquiry into their population.

Second, there is a strong historical reason for this distinction. SC/ST's have not been part of the society for over hundreds of years. As untouchables, society did not even interact with them. But OBC’s were part of the society, but at the lower end. They suffered discrimination at the hands of the upper caste.

Does the Govt have enough material to show that OBC’s are backward?

Now comes the crucial question – did the government have “objective material” before introducing the 27% for OBC quota? Does the state have any material which shows whether the various OBC qualifies as a backward class? According to Mr. Venkatesan the government does have material. He relies on the Mandal list and the state lists of backward classes which forms the basis for the central list of backward classes. Let me deal with each of them

a. The Mandal list: The Mandal Comission list which was submitted in 1980 and was based on the data from the 1961 census (even though 1971 census was available).

b. Most of the state lists have not been revised for decades. In AP the last time a survey of backward classes was done was in the year 1972. Most states have not revised their lists for almost three or four decades. Karnataka has recently initiated a comprehensive exercise of identifying backward classes.

c. While most states have appointed backward class commissions, their recommendations are based on surveys conducted three decades ago. They have not undertaken any fresh surveys.

d. Not are these state lists old, most states also do not maintain separate lists of backward classes for the purpose of Article 16(4) and Article 15(4)

The central list of backward classes is thus vitiated because it is based on state lists which are themselves obsolete. One cannot provide quota for backward classes in 2007 which have been identified way back in the 1970’s.

Mr. Venkatesan places strong reliance on the National Commission of Backward Classes (NCBC) to show that this Act has appropriate mechanism to deal with the concerns on these state lists. I differ for the following reasons

First, section 11 of the NCBC Act, based on the Indra Sawhney judgment, imposes an obligation on the Central government to conduct a revision every 10 years in consultation with the NCBC. As per Indra Sawhney, the government has to conduct a survey. Chapter VI of the Annual Report of the Commission for 2003-04 (this is the latest report available online on the NCBC site) clearly admits that a revision requiring survey has not been done and requests the central government to provide assistance and infrastructure for this purpose. The NCBC felt constrained to reiterate its recommendations of earlier years in its Annual Report. Let me quote the commission itself – “There is also the important task arising out of Section 11 of the National Commission for Backward Classes Act, viz. the revision of the Central lists, which is a massive exercise. In carrying out such tasks, the Government and the Commission will feel utterly handicapped in the absence of generation of relevant data/information regarding castes/communities. … This is essential particularly for the purpose of the revision of the Central Lists envisaged under Section 11 of the National Commission for Backward Classes Act. So far none of the States have been able to furnish to this Commission, adequate and useful data in respect of castes/communities contained in the respective Central Lists for these States.” Clearly the NCBC itself admits that the states have not provided any data and they are still tinkering with the three decades old state lists. A revision without a survey would not only amount to a violation of Indra Sawhney, but also a violation of Section 11 of the NCBC Act

Second, Mr. Venkatesan strongly relies on power of the Commission to examine complaints of over inclusion and under inclusion (Section 9 of the NCBC Act). He faults the petitioners for not relying on this mechanism. I strongly differ. It will be futile to rely on such a mechanism. Over inclusion/under inclusion complaints can only be judged against the backdrop of a proper framework which has been devised after conducting a survey based on “fair and adequate” criterion. In case of OBC, since the framework itself goes back to the early seventies for many states, the only way you can judge a complaint is by going back to the criterion by which those lists have been devised. This in turn perpetuates the mistakes committed in identifying backward classes.

Clearly the OBC quota as it stands now is based on highly questionable data. The judiciary is certainly entitled to ask the government for objective material support its policy.

Another advantage of doing a survey of the population is that it brings out the proportionality element. Backwardness is not a fixed concept and there are varying levels of backwardness. Quota is the extreme step which may not be justified if the backwardness can be redressed by a preference in terms of extra marks or any other such mechanism.

The real reason why most states are not inclined to do a survey is because of a fear that certain communities might have to be excluded and some of them are politically powerful (The Vokkaliga community which is an OBC in Karnataka has been often cited as an instance)

In my personal opinion, I would rather prefer a deprivation index (borrowing from the work of several sociologists) in which caste is “a” factor and not “the” factor in identifying backward classes. Social and educational backwardness can be a product of poverty, education, social milieu, parents profile and place of birth and therefore all of them have to be taken into account. Giving quota to a OBC candidate who was born to well educated parents, attends an English medium private school and grows up in an urban milieu over a non-OBC candidate who is born in a rural village, goes to a govt school, born to illiterate or semi-educated parents is to my understanding a clear violation of Article 15 (1) which prohibits discrimination on the basis of caste and there is nothing in the Constitution – not even Article 15(4) – that justifies such a result. This scenario is not an exception, but a social reality. (The only way one can say it is an exception is on the basis of recent objective material which the government does not have!)

Was the Court justified in giving the stay?

I don’t have any strong views on this aspect. Although a stay on a legislation should not be granted as a matter of course, it is certainly not unprecedented. I do think the Court was justified in staying the statute. Mr. Venkatesan relies on presumption of constitutionality and balance of convenience.

First, the presumption of constitutionality is a well settled constitutional law principle. But it is still a presumption and like all other presumption, its sole purpose is to shift the burden of proof. In Constitutional law, this presumption operates to impose a burden on the petitioner to show the statute is unconstitutional. The petitioner has to begin by showing that the statute is unconstitutional. Once the petitioner does that, the burden shifts to the government to defend the statute. In this case, the petitioner has asserted that OBC quota violates Article 14 and in particular Article 15(1) and it is not protected by Article 15(4) and 15(5) since the material on record does not support quota for OBC. But Mr. Venkatesan wants the petitioner to prove the absence of data. I doubt the Court has ever asked a petitioner in a constitutional litigation to prove a negative. In constitutional and administrative cases, once the petitioner alleges lack of material, it is the government’s job to show that it based its decision on objective material since that information is within the exclusive possession of the government. In this case, the petitioners showed that the existing material did not support the OBC quota decision, and the judge found that the government failed to show any objective material which backs the decision of the government to have 27% quota. So he gave more time for the government to submit material to back up their decision. It is in this context, I made the assertion in my previous comment that what the court is really saying is that the law is unconstitutional as of today but can become constitutional if the government presents sufficient data. The judge held a mini-hearing for the purpose of granting a stay order. And once he did that, he is perfectly entitled to grant a stay order.

Mr. Venkatesan relies on the R.K. Garg case. If I am not mistaken that case was in the context of a VDIS scheme which falls within the realm of economic policy. The Supreme Court has always professed a strong doctrinal indifference to reviewing economic decisions which involve policy. But the situation completely changes when it comes to caste centric reservation since it is based on the constitutionally prohibited criterion of caste. Some of the Indian judgments have used the American terminology of “strict scrutiny” when a constitutionally suspect classification of caste or religion is invoked. An economic legislation does not attract that level of scrutiny.

Second, the concept of balance of convenience is a concept which is borrowed from civil procedure. It is invoked when the Court does not have the time to hear the parties on the merits of the case, but has to award interim relief. When the case first came up before this Court, the balance of convenience was in the favor of the government, but once the court heard the parties and examined the written submissions, the concept of balance of convenience is no longer relevant.

NOVARTIS CASE TRANSFERRED TO THE IPAB

Pursuant to an earlier post on this topic, the Madras (Chennai) High Court has transferred the Novartis matter to the Intellectual Property Appellate Board (IPAB). As I'd mentioned earlier, this is circuitous, as the matter is likely to find its way back to the High Court, by way of a writ petition against the order of the IPAB. For those of you interested in a succinct exposition of this case, read this article from IP-Watch, a news service that is gaining reputation as one of the most authoritative on matters of international intellectual property.

Fortunately though, the Madras High Court has not transferred the entire case to the IPAB, but only that bit that relates to the patentability of Imatinib Mesylate (the pharmaceutical salt form underlying the anticancer drug Gleevec). As those of you familiar with this case know, Novartis had appealed the Controller's decision that Imatinib Mesylate was not patentable, since:

1. It is not new (it is anticipated from a 1992 patent application covering the Imatinib base)
2. It is a salt form that does not demonstrate an "increased efficacy" over the earlier known Imatinib base and hence is unpatentable under section 3 (d). Novartis had also challenged the TRIPS compatibility and constitutionality of section 3(d). Since the Madras High Court completed hearing arguments on this aspect, the court decided to not transfer this aspect of the matter, but has reserved judgment. In any case, I'm not sure that the IPAB would have had jurisdictional competence to rule on this particular aspect of the matter.

Which way is the court/IPAB likely to go? Difficult to tell at this stage, but to the extent that one might reasonably predict outcomes, this is my take:

i) The Madras High Court is likely to avoid ruling on the TRIPS compatibility of section 3(d). Firstly, since India is a "dualist" nation, international treaties are not directly enforceable in India, but have to be separately legislated upon before they are enforceble. No doubt, the Vishaka case was an exception to this rule--but one will remember that the court was careful to qualify that international norms would be incorporated only if such norms did not conflict with domestic law. The Novartis challenge is quite different. Secton 3(d) is already part of domestic law. Novartis seeks to invalidate existing domestic law (section 3(d)) as not complying with an international legislation i.e. TRIPS. Secondly, the right forum to moot such a challenge is the WTO dispute resolution panel and not a domestic court. Thirdly, given the sensitivity of the Novartis case and the international uproar, the Madras High Court is more likely to duck the issue , on the ground that it lacks jurisdictional competence.

If the Madras High Court were to however rule on this aspect, the decision is likely to go against Novartis i.e. the likely holding will be that section 3(d) is compatible with TRIPS, as it is an "obviousness" standard that member states are free to define in a manner consistent with their national policy. Section 3(d) does not "discriminate" against the pharmaceutical sector but only makes a "justified" differentiation, given the specificity of salt forms in the pharmaceutical sector i.e. other technology sectors such as mechanicals, electronics etc do not face “different salt form” kind of issues. It bears noting that US patent law encompasses a heightened utility requirement in the context of gene patents—i.e. in order to be patentable, a gene sequence has to demonstrate “substantial”, "specific" and "credible" utility. This came out of a desire to put a stop on the multitude of frivolous gene patent applications that cited the obvious utility of being a “mere probe”. These steps that cater to the specificities of technology sectors are perfectly legitimate exercises of national discretion by member states. And India is no different.

For similar reasons, section 3(d) is not likely to be struck down as an “arbitrary” standard under Art 14 of the Constitution of India.

ii) The IPAB's ruling on "patentability" will depend on whether or not they are convinced that Imatininb Mesylate was in fact 30% more "bio-available" than the other forms and therefore more “efficacious” under section 3(d). If this is not factually correct, then the IPAB will uphold the decision of the Controller rejecting the patent. Unfortunately, the order of the Controller in this regard is not very illuminating. It appears that the Controller was not convinced, as a matter of fact, that this salt form was, in fact, 30% more bio-available.

Insights on academic research in India (with a focus on Reservations)

Like others on the blog, I have been trying to come to grips with the decision of the Supreme Court to stay OBC quotas in the Ashoke Kumar Thakur case. The complexity of the issues involved is aggravated by the fact that there are several Supreme Court decisions that have at least some relevance to this case (quite a few of which are inconsistent with each other), as well as the fact that there isn't any recent academic work which tries to put the core issues in historical, legal and sociological perspective.

Which is why the assertions made in this article in today's Indian Express seem particularly relevant. Authored by Harsh Sethi, who is a consulting editor with the venerable 'Seminar,' the article highlights the problems with academic research in India with blunt precision. In particular the following struck me as particularly insightful:

"The end result is not only the paucity of quality research — exceptions apart — in the social sciences and humanities, but worse, ex-ante postulations, over-reliance on experiential insights and ideological biases marking public debate, often to the detriment of public policy. Without falling prey to xenophobia, it is time that we ask ourselves why so often some of the best analysis of Indian problems, both past and present, is available in the work of the foreign or non-resident Indian scholar.

Take Gujarat and the names that first come to mind are those of Jan Breman and David Hardiman. On the RSS, the most quoted book is still Brotherhood in Saffron by Walter Anderson and Sridhar Damle. In over three decades we have still to better it. The first book length work on the VHP is by Eva Tuti, a Swedish researcher. On Hindu nationalism, we turn to Christophe Jaffrelot; on Hindu-Muslim riots to Paul Brass, Steve Wilkinson and Ashutosh Varshney — all students of Myron Weiner, still remembered for his outstanding work on the child and the state in India and the ‘sons-of-the-soil’ movements. Even today, despite the intensity of polemical writing on reservations and quotas, it is Marc Gallanter (sic) and Thomas Weinskopf who are most cited. Surely, for all our claims as a knowledge super-power and our pride in our innate abilities, we Indians should have managed a better record.

... ... ...

Much of this is known as are the commonly advanced explanations by our teaching-researching community. They rue bad working conditions, poor pay and perks, exploitative managements, politicisation of institutions, and so on, as explanation, if not justification, for unsatisfactory performance. All this is in part true, as is the low public expenditure on higher education. But try and remember the last time unions of academics fought for pedagogic concerns (barring on the NCERT textbooks), to ensure that our libraries function better, for freedom to research and teach better, establish quality journals, strengthen refereeing and evaluation procedures. How often do we come across examples of involvement with student learning, mentoring younger researchers or translating key texts in non-English Indian languages. So why be surprised if there is considerable scepticism about the constant carping about work loads, salary scales and retirement benefits? Let’s face it, once tenured in public institutions, there is little demand for performance. More than a shortage of resources, far too many of our academics are lazy; they can get away without working.

As one of my senior colleagues once pointed out, the Indian intellectual environment is characterised by a skewed bi-modal distribution. Most academics do not have the wherewithal to engage in meaningful intellectual tasks. Those that do, once they have made their reputations or established their networks, are chased by a plethora of clients. For them it is a seller’s market. Quality invariably suffers(Emphasis added)."

One can add to the list of foreign scholars who have contributed to legal scholarship in India. For now, however, my focus is on academic works focusing on the law relating to reservations in India. To my knowledge, Marc Galanter has not focused on the more recent reservations jurisprudence of the Supreme Court of India, but his earlier work, especially his 1984 text, 'Competing Equalities: Law and the Backward Classes in India' remains one of the most authoritative works in the area of reservations law in India, and still is among the best places to start for anyone interested in the overall issue. Galanter has a website where some of his earlier pieces are available online, and the section on 'Caste and Untouchability' has some of his articles on reservation.

The problem that Sethi focuses on become clear when one looks at recent writing on reservations law in India. To cite but one example, take P. P. Vijayan's, "Reservation Policy and Judicial Activism" which was published in 2006. Based on the author's PhD research, the book has very useful charts on recent decisions of the Supreme Court on various aspects relating to reservations. However, the analytical quality of the book is woeful, and it does not provide any guidance on how one is to make sense of the often conflicting rulings handed down by the Supreme Court.

What is heartening is that academics from other disciplines seem to be focusing on the issue of reservations and producing solid academic work. During last year's debate, I found the articles by Yogendra Yadav and Satish Deshpande published in the Hindu particularly helpful in understanding the empirical context against which OBC quotas should be viewed. The parts of the article (which was eventually published as a two part series) are available here and here.

Hopefully, the debate over the case will spur more academic legal research on the issue of reservations in India. It is clear that policy-makers and judges in India will greatly benefit from such research.

SC's Stay of Mandal II: A Rejoinder

Mr.Vivek Reddy’s well thought-out response (carried in the comments section of my earlier post) requires a detailed critique. While I have posed certain specific questions to him, I am using this opportunity to further provoke him and other friends on the blog, so that there is more light on this controversial interim order.

1. Did the Court decide the case on merits?

Ans: My interest in the interim order is on how elaborate the Bench has been on the question of stay. It is pointless to “elaborately consider the contentions of the petitioners and the government” and then conclude in paragraph 18 that “the issues need deeper consideration in the background of their legal and social importance.”
Now let us consider how the Court considered the stay issue. Their only concern is this: “What may have been relevant in 1931 Census may have some relevance but cannot be the determinative factor.” The Central Government’s counter-affidavit shows how flawed this concern is. The 1931 Census was not the basis for identification of OBC castes. The GOI’s OBC lists include castes which are common to both the Mandal and the States’ lists. In other words, Mandal list alone is not sufficient. In effect, it is the states’ lists which have been accepted by the Central Govt. The states’ lists have undergone the tests of judicial scrutiny in many cases, and have not been struck down for want of uptodate data.
The court prima facie assumes that inclusion of castes in the OBC list has been mechanical, and done without adequate relevant data. This is a wrong assumption. The inclusion of castes has been going on for many years in various States, on a variety of criteria. The Mandal Commission followed its own criteria, (not on the basis of 1931 census) including representation from the claimant castes, field visits by the Members, and the States’ lists. Now, it is possible that some castes in the lists ceased to be socially and educationally backward, and there could have been mistakes and imperfections while including certain castes, as it could happen in a gigantic exercise like this. Even if there is a caste census, it could happen.
That is why the National Commission for Backward Classes Act, 1993 set up in pursuance of the Indra Sawhney judgment, provides a mechanism to rectify such aberrations. Anyone aggrieved with these lists, could approach the Commission stating the facts, and the nature of the complaint, with documentary evidence, if any for inclusion or exclusion. The Commission’s advice in this regard is binding on the Government. For this, one need not wait for 10 years. The Act also envisages once in a 10-years revision of the lists. This was complied with in 2003, when the Commission advised the Government after a revision, that there was no scope for excluding any classes from the list as the reservation was only introduced very recently after the implementation in services in 1993. In the case of educational institutions, it had not even started. So the question of revision did not arise. Strangely, the Court did not at all fault the petitioners for not using this grievance redressal mechanism under the NCBC Act. All these are to be found in the counter-argument. But for strange reasons, the Court did not address these issues at all in its judgment. Is it a case of selective consideration “on merits”?
I am unable to convince myself that it is a case of the Court hearing it on merits. Even if it had heard it on merits, I am unable to understand why the questions of balance of convenience and presumption of constitutionality are irrelevant. “Elaborate” order, ipso facto, cannot suggest that it was heard on merits. Did the Court seriously go into the merits or non-merits of stay? Instead, it raised extraneous issues like data collection and creamy layer, (on which it was not convinced itself, as it admitted there is need for detailed hearing), and on the basis of their superficial understanding (not even is there any prima facie finding), it proceeds to grant a partial stay.

2. Is there data to back up the OBC reservation?

Ans: Instead of asking the Government this question, the Court must have asked the petitioners, to show that specific inclusions of castes in the OBC list were without any data, and this was not seriously examined by the NCBC, when they complained to it. The petitioners are apparently lazy to carry out such an exercise themselves, and therefore, suggested a fresh survey. The Court cites ASG as saying in a different context that there is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism. The Court does not want to admit that such an acceptable mechanism already exists in the form of the NCBC, which is entrusted with the task of revision, if necessary. The NCBC only found this revision exercise premature in 2003. If someone is aggrieved with this decision, they can challenge it, rebut it by proving that many castes in the OBC list had ceased to be socially and educationally backward. Again, the court has only come to the aid of the petitioners’ lazyness. On the contrary, imagine what could happen if the GOI follows the suggestion, carries out a survey, periodically identifies more backward citizens, only to show that the number of SEBC requiring reservation is much more than what was earlier believed to be. The Court is only opening a Pandora’s Box.
Here, I would like to correct Mr.Vivek Reddy. The court did not say that the Act is unconstitutional as of today. It is not even sure of this; that is why it has adjourned the case to August for a detailed hearing, clearly showing that its elaborate hearing for the interim stay is not at all sufficient. If the government comes up with fresh evidence, and the Court upholds the Act, will it then compensate the OBCs who lost one academic year, because of its faulty stay of S.6 of the Act?

3. The illogical data logic:

My point in raising the issue of governance coming to a standstill is to show how illogical the requirement of data collection is. Will anyone suggest data collection to show that the SCs and STs continue to be deprived or that the castes listed as SCs and STs still fulfil the criteria for their inclusion? After all, if things can change in the case of SCBCs, it could happen in the case of SCs and STs also. I understand SCs and STs suffer from centuries of historical injustice, and therefore, must be treated on a different plane. But the line of argument can be the same, without overlooking this essential difference. Why should we assume that the Govt. did not satisfy any objective social criterion before treating a caste as backward. I agree specific instances of abuse of power can always be exposed and there is a legitimate remedy and a process under the NCBC Act. But why should we throw the baby with the bathwater?
To put it differently, can Mr.Vivek Reddy as an example, demonstrate what sort of hard data could be convincing to show that the currently listed OBCs are SEBCs. The very inclusion of these castes in the lists carries with it a history of social and educational backwardness – if not a history of discrimination and deprivation as the SCs and STs – as documented by their representations to the Government, demands etc. I fail to understand how such data could be meaningful and convincing through data collection organized in terms of national surveys or censuses. Considering the backwardness and poverty level, it would not be surprising if the people fudge facts, or make spurious claims about their backwardness. The result would not only be confusing, but disastrous. Just one instance will explain. The reservations were first introduced in 1902 and 1921 respectively in princely states of Kolhapur and Mysore, in response to the local movements against existing caste based monopoly. Those princely states did not go about collecting data, but responded immediately to the demands, in order to prevent social unrest. Similarly, if the modern-day governments instinctively, and by way of impulse and formal and informal studies consider a caste as backward, such consideration can be largely respected, with due regard to a few exceptions, which can be tackled through the NCBC Act. It is naïve to believe that large-scale surveys, which the Court has in mind, would be able to help us have fool-proof OBC lists.
Mr.Reddy himself agrees that the question of overall OBC population is not directly relevant when it comes to educational institutions. Does he not agree that the Court is essentially mistaken when it cites different figures of OBC population, as given by different agencies to underline its data-quest? In my view, surveys conducted on a large scale are not the answer to determine whether a caste is SEBC. The answer has to be found in anthropology and sociology, not in statistics.

4. Why I feel the ‘stay’ is unjustfied?

Ans: I would like to draw attention to an important case decided in 2000 by the Supreme Court. It is Bhavesh D. Parish & Others v. Union of India and Another. In this case, the Court makes an important distinction between statutes having a bearing on economic policy and those which do not similarly impinge on economic policy. It cites the Supreme Court’s observations in R. K. Garg v. Union of India 1982 (1) SCR 947 at 969 to support this distinction. It says: “When considering an application for staying the operation of a piece of legislation, and that to pertaining to economic reform or change then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in staying the applicability of the same. Merely because a statute comes up for
examination and some arguablepoint is raised, which persuades the courts to consider the controversy,the legislative will should not normally be put under suspension pending such consideration. It is now well-settled that there is always apresumption in favour of the constitutional validity of any legislation,unless the same is set-aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the
interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itself. While the courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to beunconstitutional. It is, therefore, necessary to sound a word of cautionagainst intervening at the interlocutory stage in matters of economicreforms and fiscal
statutes.”

In my view, this special treatment extended to economic legislations by the Supreme Court is not at all convincing. But I would tend to believe that the logic underlying this judgment applies with equal force to the Central Educational Institutions (Reservation in Admission) Act, 2007.

To sum up, did the SC conclude that S.6 of the C.E.I.(RA) Act, 2007 was manifestly unjust and glaringly unconstitutional? The court was not sure, that was why it has adjourned the case for a detailed hearing. Hence, the stay was apparently unjustified.

ACADEMICS AND THEIR IMPACT ON THE JUDICIARY

Just came across Adam Liptak's interesting piece titled "When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant" in the New York Times.

Liptak captures an interesting judicial perspective on how relevant US law review articles really are. Very important lessons here, particularly for Indian academics that seek to make impact on the judiciary. Unfortunately, the NY Times article can be accessed only by a paid subscriber, but here are the excerpts. I particularly like the reference to blogs and their growing influence. Also, Justice Reena Raggi's quip: "If the academy does want to change the world, "it does
need to be part of the world."

The note also speaks about the growing participation of academics in litigation—something that we may not see in India, owing to the archaic Bar Council rule that academics cannot appear in court. I’m hopeful however that this does not stay for long and that academics are given an opportunity to be “a part of the real world”. Does anyone have suggestions for how we can go about getting them to change this rule? Anyway, here goes:

"I haven't opened up a law review in years," said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. "No one speaks of them. No one relies on them."

In a cheerfully dismissive presentation, Judge Jacobs and six of his colleagues on the United States Court of Appeals for the Second Circuit said in a lecture hall jammed with law professors at the Benjamin N. Cardozo School of Law this month that their scholarship no longer had any impact on the courts.

.....Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions * which is to say the practice of law * is beneath them.

The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.


The law professors at the conference said they loved being cited, even negatively. Paul M. Shupack, who teaches contracts and commercial law at Cardozo, reminisced about having his work on lien priorities mentioned in a footnote to a decision of the Second Circuit by Judge Henry J. Friendly in 1984. "Judge Friendly cited it and said our position was alarming," Professor Shupack said at the conference. "I was happy he had read it."

Michael C. Dorf, a law professor at Columbia, had a similar reaction to being cited dismissively in this month's decision striking down parts of the District of
Columbia's gun control law. On the one hand, Professor Dorf said, "there's no such thing as bad publicity." On the other, he said it was vexing to see his article
caricatured rather than engaged.

..."The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable," Professor Dorf said.

There are other reasons for the diminished influence of law reviews. One is the
emergence of electronic databases.

"Before search engines," said Marci A. Hamilton, a law professor at Cardozo, "if you wanted to figure out what all the cases on a given topic said, you went to a law review." Now you punch some words into Lexis or Westlaw.

But probably not. Even when courts do cite law review articles, Judge Robert D. Sack said at Cardozo, their motives are not always pure. "Judges use them like drunks use lampposts,"
Judge Sack said, "more for support than for illumination."

The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.

"If the academy does want to change the world," Judge Reena Raggi said, "it does need to be part of the world."

To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.

Law reviews, by contrast, feel as ancient as telegrams, but slower."

A reluctant 'stay' on the basis of flawed reasoning

The language of the Supreme Court’s stay of section 6 of the Central Educational Institutions (Reservations in Admissions) Act, 2006 makes for strange reading. In the last paragraph, it says: “In the background of what has been explained above, it would be desirable to keep in hold the operation of the Act so far as it relates to Section 6 thereof for the OBCs category only.” There is no direction to the Government to do so. As happened in the case of M.Nagaraj, which led to considerable ambiguity whether the SC wanted extension of creamy layer principle to SC, and STs, the latest ‘stay’ is bound to cause certain misgivings, with demands pouring in from the political parties and affected sections of people that the Government should not withdraw from implementing the OBC reservations despite the Supreme Court’s two-Judge Bench’s “desire”. Curiously, the Bench cites the same ambiguous paragraph in the M.Nagaraj judgment to justify its stay.
There is an inescapable feeling whether the Court has reduced the controversy to a civil dispute, by granting a stay. Whatever has happened to the presumption of legality of legislative Acts? Instead of asking the petitioners to come out with facts and data to challenge this legislative presumption, the Court has swung the other way around, and has asked the Government to explain and defend itself, and w hen it did, it expressed dissatisfaction, by granting a partial stay. If the Bench had an open mind, the stay need not have been granted. After all, the balance of convenience was against the stay: the general candidates had nothing to lose, as their existing quota of seats would be protected under the Act, whereas the OBC candidates would have lost one academic year because of the stay of Section 6, if later the Court found the entire Act valid, after detailed hearing of the parties. In Mandal I, what was stayed was executive Memorandum, till it was found valid in the Indra Sahney case. Staying the operation of the Act is much more serious, but the Court has not at all justified the stay in the judgment. What happens if the Government is asked to provide survey-based data for each and every progressive step it takes, on the basis of its instinctive, impressionistic assessment, where survey-based data collection may have no relevance at all. Would not governance come to a standstill?
The Court assumes that the 1931 Census is the determinative factor, and voices its disapproval. This, however, is a flawed assumption. The Court selectively quotes from Indra Sawhney, leaving out those paragraphs of that judgment which dealt with the validity of the data relied upon for arriving at the 27 per cent. The Mandal Commission arrived at 27 per cent reservation based on multiple procedures in the contemporaneous context. (paragraph 16 of the Judg.)
There is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism, says the court in paragraph 19. Such a mechanism already exists for this purpose: Section 11 of the National Commission for Backward Classes Act, 1993 –as dealt with in paragraph 11 of the Judgment- provides for it. The Act also provides for a complaints redressal mechanism, wherein, if anyone is aggrieved that a particular caste is no longer backward, it could bring this to the attention of the Commission, with proof, and the Commission’s recommendation in this regard is binding on the Government. The Court has not answered the criticism that a survey of the OBC population is unnecessary to arrive at the percentage of reservation. All surveys clearly reveal that the population is more than 27 per cent : Mandal put it at 52, and others may be less.
Lastly, the Bench admits that the UOI’s claim that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) has to be examined in detail, to see whether it is based on sound foundation. If that is so, why grant a stay of Section 6 of the Act on the basis of its wisdom that creamy layer is a necessary bargain between the competing ends of caste based reservations and the principle of secularism – as the plea of the petitioners for the stay of the Act is not at all relevant to the question of whether creamy layer is a necessary bargain or not.