Today’s Economic Times carries an article by Sunil Khilnani that raises serious questions about India’s increasing focus towards economic growth to the exclusion of other important concerns. He argues that India’s unity and social justice problems cannot be resolved through economic growth alone. Economic factors (that are tangible and relatively easily comprehensible) have gained prominence over questions of distribution, social justice, political unity and so on. He says:
“There is an easy comprehensibility to economic success or failure — its metric is standard, a global currency. However there is a danger in our recent obsession with economics: a sense now common among the elite that all of India’s hard questions of distribution and social justice, of political unity, of preserving the habitat, will be resolved for us by growth. Yet how then can we explain the fact that one of our most prosperous and globalised states, Gujarat, can also claim to exemplify in recent times the worst bigotry and intolerance of our compatriots? It is not as easy as some of us would like to imagine to escape or transcend politics. India’s great distinction, historically, is political: the creation, out of material unparalleled both in its diversity and its entrenched hierarchy, of an open society committed to democratic politics, to a pluralism of human life, and to a project of common development. This was the founding idea of India. And one quality of Nehru’s thought whose force remains undeniable today is his insistence on the primacy of politics as we negotiate our differences and unity. Three fundamental questions will demand all the political skills we can collectively muster. How do we think of ourselves as a community? What sort of a society do we want to be? And what do we wish to do in the world? These connected issues — of identity, solidarity, justice and security — Nehru had long recognised as fundamental, and they will continue to define our political horizon as we move forward towards the first century of our existence as free nation.”
The questions he raises go far beyond economic growth and prosperity of India as a nation. He further goes on to add:
“The market-and-merit camp believes that social justice will come from growth, as benefits slowly trickle over the parched voids of India’s social landscape. But a decade of economic growth hasn’t much changed, for instance, our percentage of underweight children. Our population of hungry children is still much larger than that of sub-Saharan Africa. But we’ve all but abandoned Nehru’s belief in the state and its policies as an important agent for remedying social inequality. We’d prefer to leave social justice to the captains of industry — people who create wealth and then give some of it away. A new generation of philanthropists is certainly to be welcome and encouraged, and some of them are engaged in vital projects. But charity is ultimately contingent and dependent on the whims of the giver, and it is almost never accountable. It cannot, in a nation of one billion people, resolve underlying issues of social opportunity and distribution. Between the rigid dogma of reservations and the whimsy of philanthropy, we need to steer a steady line of innovative and focused policies.”
There are a couple of significant takeaways from this. First, benefits of economic growth need not necessarily percolate to the bottom rung of society. Even if does, it is likely to take an unduly long period of time for such percolation to materialize, before which it may be too late. Timing of the benefits of growth is as important as receiving the benefit itself.
Second, the state or Government cannot abdicate its responsibility for upliftment of the downtrodden by citing to economic growth. Even though private enterprises may possess distributable wealth, and many indeed in fact distribute their wealth magnanimously by way of charity (as we have seen in the case of several large responsible Indian corporates), that cannot be relied upon on a sustainable basis. Apart from the accountability issue that Sunil Khilnani raises, there is also an issue of incentives. What incentives do private enterprises have to act towards social development? In a larger context, corporates are likely to be socially responsible only if they obtain perceivable gains. For instance, a company may act in a socially responsible manner if that results in an enhancement of its image or reputation among consumers and thereby a tangible increase in its sales and profitability, or because such a company is likely to attract large institutional investors who are socially conscious. In the final analysis, a corporate’s ability to act in a socially responsible manner is driven by its incentives that is represented by the classic conflict as to whether it should work to enrich its owners or shareholders on the one hand or whether it should work to bring about overall benefit on the other hand to the society in which it operates. It appears that the answer is still somewhat elusive.
Thursday, November 8, 2007
Wednesday, November 7, 2007
Breaking News: Supreme Court breaks silence on Justice Sabharwal issue
The Campaign for Judicial Accountability and Judicial Reforms had alleged that Justice Y.K.Sabharwal called for and dealt with the sealing of commercial property case in March 2005, though it was not assigned to him. “It is only the Chief Justice who can assign pending cases to various Judges. He was not the CJI at that time”, the CJACR said, annexing the copy of the order dated March 17, 2005 along with its press release issued on September 19, 2007. (At that time, Chief Justice was Justice R.C.Lahoti) The press release added that Justice Sabharwal, while responding to the Campaign’s charges in his article in the Times of India, did not answer this particular charge.
The CJAJR's rejoinder is here.
As I was intrigued by this charge, I filed an application under RTI seeking relevant answers from the Supreme Court. I am giving below my questions and the answers provided by Mr.Ashok Kumar, Central Public Information Officer, Supreme Court.
Q: With reference to the above order dated 17.3.05, was the CJI’s consent obtained to transfer the cases of commercialization of residential areas and the appeals arising out of the Delhi High Court judgment about the absence of power of sealing in respect of unauthorized construction or misuse, and post them for hearing before the Bench which issued the above order dated 17.3.05?
A: The matter was directed to be listed before the Bench of Hon’ble Mr.Justice Y.K.Sabharwal with the approval of Hon’ble the Chief Justice of India.
Q: Does the CJI have exclusive discretion on the distribution of cases? Is the CJI’s consent mandatory to post a case before a particular Bench?
A: The matters expected to be filed in the Supreme Court have been divided into 45 subject categories which have been further divided into various sub-categories. Each fresh matter is categorized as per those subject categories. Each subject category has been allocated to one or more Judges and the allocation has been fed in the computer. Subject to orders of Hon’ble the CJI, fresh matter are allocated to them through computer, as per the subject category.
When I sought CJAJR's convenor, Mr.Prashant Bhushan’s reaction to this, this is what he said: “The technical requirement might have been fulfilled with the consent of the CJI to listing the matter before Justice Sabharwal. But the question of conflict of interest remains unanswered.”
If we read the 17.3.05 order carefully, it is clear that Justice Sabharwal's order directing the sealing case to be listed before him stemmed from the suggestion of Ranjit Kumar, Amicus Curiae, and other counsel in the case.
The order says: "Learned counsel also seeks to challenge the expansion of the list of household industries as arbitrary. It is further contended that this aspect is intimately connected with the issue of commercialisation of residential areas, change of use of industrial areas for non-industrial purposes.
"It is expedient, and all learned counsel appearing also submit, that while dealing with the issues arising out of the 3rd and 4th Progress Reports (submitted by the Supreme Court Monitoring Committee set up in this case) and the issues as raised by the learned Amicus Curiae, it may be necessary to hear and decide the aspect of commercialisation of residential areas as well which was earlier deferred.
"Further, it is pointed out that Civil Appeal No.5413 of 2002 (D.Bhowmick & Ors. Vs. Delhi Development Authority & Ors) and other connected appeals arising out of the same judgment of the Delhi High Court holding about the absence of power of sealing in respect of unauthorised construction or misuse shall also be taken up for hearing along with these matters."
The question is, if the facts as shown above, indeed favour Justice Sabharwal, why did he not answer this particualr charge in his article in the Times of India? Was it inadvertent? Or does his silence reflect his expectation that the answer may well be provided by the Supreme Court? My previous post referring to this article is here.
The CJAJR's rejoinder is here.
As I was intrigued by this charge, I filed an application under RTI seeking relevant answers from the Supreme Court. I am giving below my questions and the answers provided by Mr.Ashok Kumar, Central Public Information Officer, Supreme Court.
Q: With reference to the above order dated 17.3.05, was the CJI’s consent obtained to transfer the cases of commercialization of residential areas and the appeals arising out of the Delhi High Court judgment about the absence of power of sealing in respect of unauthorized construction or misuse, and post them for hearing before the Bench which issued the above order dated 17.3.05?
A: The matter was directed to be listed before the Bench of Hon’ble Mr.Justice Y.K.Sabharwal with the approval of Hon’ble the Chief Justice of India.
Q: Does the CJI have exclusive discretion on the distribution of cases? Is the CJI’s consent mandatory to post a case before a particular Bench?
A: The matters expected to be filed in the Supreme Court have been divided into 45 subject categories which have been further divided into various sub-categories. Each fresh matter is categorized as per those subject categories. Each subject category has been allocated to one or more Judges and the allocation has been fed in the computer. Subject to orders of Hon’ble the CJI, fresh matter are allocated to them through computer, as per the subject category.
When I sought CJAJR's convenor, Mr.Prashant Bhushan’s reaction to this, this is what he said: “The technical requirement might have been fulfilled with the consent of the CJI to listing the matter before Justice Sabharwal. But the question of conflict of interest remains unanswered.”
If we read the 17.3.05 order carefully, it is clear that Justice Sabharwal's order directing the sealing case to be listed before him stemmed from the suggestion of Ranjit Kumar, Amicus Curiae, and other counsel in the case.
The order says: "Learned counsel also seeks to challenge the expansion of the list of household industries as arbitrary. It is further contended that this aspect is intimately connected with the issue of commercialisation of residential areas, change of use of industrial areas for non-industrial purposes.
"It is expedient, and all learned counsel appearing also submit, that while dealing with the issues arising out of the 3rd and 4th Progress Reports (submitted by the Supreme Court Monitoring Committee set up in this case) and the issues as raised by the learned Amicus Curiae, it may be necessary to hear and decide the aspect of commercialisation of residential areas as well which was earlier deferred.
"Further, it is pointed out that Civil Appeal No.5413 of 2002 (D.Bhowmick & Ors. Vs. Delhi Development Authority & Ors) and other connected appeals arising out of the same judgment of the Delhi High Court holding about the absence of power of sealing in respect of unauthorised construction or misuse shall also be taken up for hearing along with these matters."
The question is, if the facts as shown above, indeed favour Justice Sabharwal, why did he not answer this particualr charge in his article in the Times of India? Was it inadvertent? Or does his silence reflect his expectation that the answer may well be provided by the Supreme Court? My previous post referring to this article is here.
Harish Khare on what constitutional actors within India can learn from recent events in Pakistan
This post continues the theme addressed in the previous one. Harish Khare , the political editor of the Hindu, has a stimulating and provocative piece in today’s issue where he begins by commenting on the typical trend of reactions within India to the democratic troubles of our neighbours in South Asia:
Sooner rather than later, films and cricket should provide distractions that would help us move out of our current patronising preoccupation with the developments in Pakistan. A collective sense of smugness informs most of the Indian reactions to President Pervez Musharraf’s Emergency proclamation in a country that has not been allowed by a combination of external and internal forces to construct a durable structure of governance. Arguably, it is at a time like this that we can feel good and even superior about our democratic arrangements; but, it is also at times like these that we need to summon the humility to learn a lesson or two from the turmoil next door.
The foremost lesson that is obvious for us in India from the recent events not just in Pakistan but also in Bangladesh is that there would be consequences if the idiom of confrontation is pushed too far and too hard. Despite a seemingly robust institutional arrangement of checks and balances, we too are in imminent danger of giving in to a culture of confrontation, a culture that puts a premium on the right to oppose without the obligation to produce minimum orderly conduct of governing processes. This creeping culture of confrontation has already set precedents, which are stoked by all-too-over-enthusiastic, under-supervised, discourse-manufacturers.
Khare proceeds to enumerate the lessons that he believes different political and constitutional actors within India should draw from recent events in Pakistan. He addresses, in turn, such lessons for the political parties, the army, the judiciary, the press and the foreign policy establishment in India. While the entire piece is worthy of a close read, I extract here his views on what our judiciary should consider:
A similar lesson ought to be imbibed by the judicial fraternity in India: do not overstep the institutional boundaries. Pakistan’s Chief Justice Iftikhar Mohammed Chaudhry is also in part author of the mess that is Pakistan today. He and some of his brother judges allowed themselves to be provoked by the gentlemen in the black coats into a confrontation with the Islamabad establishment. The Bar and the Bench goaded each other to assume the role of the principal opposition to President Musharraf. This was presumptuous and was bound to invite reaction.
Similarly, some of our judges in the Supreme Court and the High Courts would do the institution they preside over and the country a whole lot of good if they understand a simple maxim: there will be consequences, not always healthy, if you decide to play politics or decide to get involved in politicians’ quarrels. The judges’ job is to interpret the law and to promote constitutional wholesomeness; judges are not and cannot be arbiters of political morality. Moreover, there can be the most unpredictable consequences if the judges continue to refuse to set their own house in order by addressing allegations of corruption while arrogating to themselves the right to preach and prosecute an errant political class.
There is the issue of the nature and content of the democratic discourse, which claims its credentials from a membership in civil society but, in fact, is a neat commercial arrangement, unaccountable and unanswerable in any democratic forum. The problem, as it manifested itself so acutely in Pakistan and which manifests itself day in and day out in India, is that this so-called democratic discourse ends up de-legitimising every democratic symbol and institution.
Because of our six decades of democratic give and take and the gradual deepening of the democratic spirit, the democratic structure is able to absorb the daily assault on the legitimacy of politics and politicians. In Pakistan, this produced insecurity and irrationality at the very core of the ruling arrangement; and, there was no mechanism for self-correction. Our own media leaders need to reflect on their own institutional arrogance and their own frailties; more than that, the democratic discourse has a responsibility to ensure that it does not create conditions which may tempt the non-democratic forces and voices to step in.
Andhyarujina on recent events in Pakistan
In a previous post, Vikram drew our attention to recent events in Pakistan, and invited comparisons to debates about judicial activism in India. Even the most bitter critic of judicial activism (in India or anywhere else for that matter) would not wish for the turn that events in Pakistan have taken over the past week. Today's Indian Express carries a piece by the noted constitutional lawyer, T.R. Andhyarujina, who has in the past been highly critical of judicial activism in India, especially in PIL cases. (See, for instance, his 1992 book which remains a classic work that even supporters of PIL and judicial activism regard as making valid criticisms). In this piece, Andhyarujina analyses recent events in Pakistan, places them against the backdrop of the history of the judiciary in Pakistan, and also draws lessons for nations beyond Pakistan. While the whole piece is an interesting read, here are some extracts:
The emergency declared by Pervez Musharraf in Pakistan must be the strangest emergency ever declared in the catalogue of such emergencies by authoritarian rulers. For the first time an emergency has been declared because an activist judiciary is accused of having created conditions by which government cannot be carried out in accordance with the constitution.
In the predominant part of the official text of the proclamation, Musharraf complains that some members of the judiciary were working at cross purposes with the executive and legislature; of increasing and constant interference by them in government policy and functions, including that of combating terrorism by ordering the release of militants; of taking over the administration of the government. He complains of the order of the country’s supreme court nullifying his order of suspension of Chief Justice Ifthikar Chaudhary and the humiliating treatment being meted out to government officials by the judiciary during court proceedings, which had demoralised the bureaucracy.
It does not require much political acumen to conclude that the real intention of the emergency is to muzzle the supreme court which, it was apprehended, would pronounce an adverse verdict on Musharraf’s election as president in the next week. The actions which followed the proclamation amply prove this.
Immediately after the proclamation, a bench of seven judges of the supreme court declared it illegal. We do not know how and at what time this bench took cognisance of the proclamation. Musharraf retaliated by dispensing with the services of Chief Justice Ifthikar Chaudhary and placed him and six other judges under house arrest. Later Justice Hameed Dogar, fourth in line of seniority, was administered the oath as chief justice by Musharraf under the new provisional constitutional order. The government also appointed new chief justices of the Sindh, Lahore and Balochistan high courts simultaneously. Later Chief Justice Dogar revoked the order of the seven-judge court declaring the emergency illegal and cancelled the hearing of the cases pending in the supreme court against Musharraf.
This is the most surprising and bizarre development in the history of the judiciary of Pakistan. In the past, the Pakistan judiciary, with rare exceptions, had displayed a general timidity and compliance to the regime of military rulers of the country that had governed Pakistan for all but 12 years. The judgments of the supreme court were protective of the military rule and unresponsive to the basic rights of the citizens by inventing recondite doctrines of revolutionary legality and state necessity to legitimise military rule.
After providing a brief overview of earlier and more recent trends in decision-making of the judiciary in Pakistan, Andyarujina concludes:
After all this, one may have to revise Hamilton’s famous statement that of the three branches of government the judiciary is the weakest, having neither the power of the sword nor of the purse. The Pakistan experience shows that it required an emergency to control the judiciary.
Monday, November 5, 2007
Mandal II: Oral arguments of Harish Salve & K.K.Venugopal
In view of extraordinary interest in my posts on oral arguments in the Mandal II case, I am posting below the summaries of rejoinders of Harish Salve and K.K.Venugopal, as I could gather from my notes taken on Nov.1. I must admit that these are not exhaustive, as I might have missed out some crucial aspects of their arguments, due to my absence in the Court. Although I have tried to be as accurate as possible in reporting the arguments, I take responsibility for any inaccuracy (which could be unintentional).
I wish to return to their arguments, and also to others’ arguments whom I might have missed for want of time (especially, that of Mr.Parasaran and Mr.Gopal Subramanian) within a few days (before the Bench delivers the verdict), by closely examining all the written submissions, to find out whether we have answers (may be conficting) for all the questions raised by the Bench at the time of the reference.
Taken together, all these four rejoinders (Salve, KKV, RD and PPR) could shed some light on why the petitioners are dissatisfied after the conclusion of the hearing. The section on K.K.Venugopal could have been longer, but unfortunately I found my notes on his argument sketchy and inadequate. I hope to return to his submission at length later.
Harish Salve:
1.Nobody said on our side that Article 15(4) is an exception. This debate is the most irrelevant.
2. Strict scrutiny is called for if Article 15(1) applies.
3. There is an inherent tension between social enginnering and votebank politics. Power is given for social engineering and not for collateral purpose. That is why the Court has to carefully scrutinize. Judicial review was created for this. Compelling state interest would apply if you are treading on dangerous ground. That is why strict scrutiny test is required; it is not alien. (Justice Pasayat said we apply a test of our own, which may be akin to strict scrutiny test) Harish Salve said: We have never been insular; we have enriched ourselves. We rejected some, eminent domain for example.
Justice Pasayat: American decisions can be considered as articles written by some eminent persons. They shed some light, but have no precedent value.
Justice Thakker: Like we say dissenting judgments also have some value.
4. Harish Salve: Supreme Court judgment in M.Nagaraj case is not obiter (except the part relating to creamy layer). I strongly resent the remarks made by Ram Jethmalani calling some of us on this side as creamy layer.
Justice Pasayat: Ram Jethmalani was referring to creamy layer among lawyers in general. (laughter)
Harish Salve: We take pride in rising above these social barriers while discussing these issues. Such comments from a senior colleague in the bar are hurtful.
5. If the State has quantifiable data, then it can make reservations.
6. Identified class minus creamy layer is equivalent to cohesive class. Social engineering, therefore, must go on even if it creates ripples in society. Harmony and good governance are part of rule of law. This impugned law smacks of politics, not social engineering.
7. Article 15(5) purports to overwrite Article 19(1)(g). The Act also overlooks Article 26 (a) (establish and maintain institutions for religious and charitable purposes). According to T.M.A.Pai decision, charitable purposes include education. Articles 26a –19-30 constitute one composite scheme. Nagaraj principle of interpretation must be applied. You are disturbing the delicate balance between Article 26a and A.30. T.M.A.Pai judgment deals with A.19(1)(g) and A.26.
8. Article 29(2) guarantees to all equality, where public funding is involved. Every student has a right under this Article. Both Venkataramana and Champakam were delivered on the same day. (also by the same Bench; Salve perhaps means here that the same Bench could not have delivered two verdicts with different import on the same day).
9. After strict scrutiny was brought in by Nagaraj, the law must move forward.
10. Article 15(5) is an unqualified way of saying Inamdar was wrong.
K.K.VENUGOPAL:1. Mr.Parasaran says Article 15(5) must be read in addition to A.15(4). But if A.15(4) permits reservation in aided minority institutions, the impugned Act says no to it, because A.15(5) says it cannot.
2. If A.15(4) operates in a parallel position as suggested by Mr.Parasaran, then it will create confusion.
I wish to return to their arguments, and also to others’ arguments whom I might have missed for want of time (especially, that of Mr.Parasaran and Mr.Gopal Subramanian) within a few days (before the Bench delivers the verdict), by closely examining all the written submissions, to find out whether we have answers (may be conficting) for all the questions raised by the Bench at the time of the reference.
Taken together, all these four rejoinders (Salve, KKV, RD and PPR) could shed some light on why the petitioners are dissatisfied after the conclusion of the hearing. The section on K.K.Venugopal could have been longer, but unfortunately I found my notes on his argument sketchy and inadequate. I hope to return to his submission at length later.
Harish Salve:
1.Nobody said on our side that Article 15(4) is an exception. This debate is the most irrelevant.
2. Strict scrutiny is called for if Article 15(1) applies.
3. There is an inherent tension between social enginnering and votebank politics. Power is given for social engineering and not for collateral purpose. That is why the Court has to carefully scrutinize. Judicial review was created for this. Compelling state interest would apply if you are treading on dangerous ground. That is why strict scrutiny test is required; it is not alien. (Justice Pasayat said we apply a test of our own, which may be akin to strict scrutiny test) Harish Salve said: We have never been insular; we have enriched ourselves. We rejected some, eminent domain for example.
Justice Pasayat: American decisions can be considered as articles written by some eminent persons. They shed some light, but have no precedent value.
Justice Thakker: Like we say dissenting judgments also have some value.
4. Harish Salve: Supreme Court judgment in M.Nagaraj case is not obiter (except the part relating to creamy layer). I strongly resent the remarks made by Ram Jethmalani calling some of us on this side as creamy layer.
Justice Pasayat: Ram Jethmalani was referring to creamy layer among lawyers in general. (laughter)
Harish Salve: We take pride in rising above these social barriers while discussing these issues. Such comments from a senior colleague in the bar are hurtful.
5. If the State has quantifiable data, then it can make reservations.
6. Identified class minus creamy layer is equivalent to cohesive class. Social engineering, therefore, must go on even if it creates ripples in society. Harmony and good governance are part of rule of law. This impugned law smacks of politics, not social engineering.
7. Article 15(5) purports to overwrite Article 19(1)(g). The Act also overlooks Article 26 (a) (establish and maintain institutions for religious and charitable purposes). According to T.M.A.Pai decision, charitable purposes include education. Articles 26a –19-30 constitute one composite scheme. Nagaraj principle of interpretation must be applied. You are disturbing the delicate balance between Article 26a and A.30. T.M.A.Pai judgment deals with A.19(1)(g) and A.26.
8. Article 29(2) guarantees to all equality, where public funding is involved. Every student has a right under this Article. Both Venkataramana and Champakam were delivered on the same day. (also by the same Bench; Salve perhaps means here that the same Bench could not have delivered two verdicts with different import on the same day).
9. After strict scrutiny was brought in by Nagaraj, the law must move forward.
10. Article 15(5) is an unqualified way of saying Inamdar was wrong.
K.K.VENUGOPAL:1. Mr.Parasaran says Article 15(5) must be read in addition to A.15(4). But if A.15(4) permits reservation in aided minority institutions, the impugned Act says no to it, because A.15(5) says it cannot.
2. If A.15(4) operates in a parallel position as suggested by Mr.Parasaran, then it will create confusion.
Friday, November 2, 2007
Mandal II: Dr.Rajeev Dhawan's rejoinder
Dr.Rajeev Dhawan, one of the counsel for the petitioners, replied to the arguments of the respondents' counsel on Oct.31 and Nov.1. This is a selective summary of his oral arguments.
1. The claim of the respondents that the impugned Act expands capability is a farce. No part of the Act is severable. It is impossible to increase capacity (of the intake of the higher educational institutions) in a proper sense in a reasonable manner.
2. The SG says castes are also professional in character. But the criteria of backwardness is much more complex. It involves the principle of inclusion and exclusion. The excluded include rich as well as the poor.
3. Limitations of judicial review: Main arguments of the other side centre around the doctrine of judicial deference – an area where judicial hands must be off. (Justice Pasayat sought to correct him saying the SG did not exactly mean that the judicial review is inapplicable in the present case – Dhawan agreed to reformulate it as judicial deference).
4. The non-obstante clause in Art.15(4) has a limited application. (It shuts out Article 15(1) and 29(2). Article 14 remains. (Justice Thakker pointed out it is an enabling clause.) Level of scrutiny in Constitution varies from Article to Article.
5. What is not in dispute? : Constitution is a social document; There is social justice in Fundamental Rights; the issue of balance (which is partly disputed by Ram Jethmalani), that is, social justice and group rights cannot overwhelm individual rights.
6. Is power under A.15(4) coupled with duty? The concept of power coupled with duty has been rejected in Ajit Singh II and III cases. (Justice Thakker here pointed out that even in absence of A.15(4), (5) and Article 16(4), SG and Mr.Parasaran had pointed out that it is part of Preamble.) Article 15(3) may be justified in the case of women; but here the State’s contribution is deficient. Ajit Singh III is a forgotten decision.
7. There is no obligation to remove historical wrongs. Constitution does not say you must right historical wrongs. It says help the disadvantaged. Reservation is not a penance for past discrimination. It is not retributive justice.
8. Ram Jethmalani’s emphasis on “only” in Article 15(1) and (2) is an over-simplification.
9. There has been an attack on the American doctrines, especially strict scrutiny, from the other side. Agreed that they are not relevant, not binding. But the level of scrutiny is written into the Constitution. Foreign doctrines are illustrative of an idea. Let the Court lay it down. Level of scrutiny is so detailed here.
10. The impugned Act is a farce. Its purpose is to achieve quick results at the expense of education. Is it a reasonable exercise? Is it a correct method to achieve that objective? There is an implicit balance between Article 14 and 15. Scrutiny relevant to this case.
11. If caste is used as a starting point, there has to be a comprehensive look. Until you do a proper survey, rational, balanced and proportionate affirmative action is not possible. Can this process be short-changed? Census is considered divisive. Then information be placed before the Supreme court. The SG says there may be potholes in the criteria. (Justice Raveendran said they say there is a road in existence) Potholes affect rich and the poor. (Justice Pasayat asked is it a walkable road? Pitfalls, not potholes). Government has not placed a proper and comprehensive criteria of backwardness. Court should ask Government to establish criteria for backwardness.
(The rejoinders of Harish Salve and K.K.Venugopal will be posted later)
1. The claim of the respondents that the impugned Act expands capability is a farce. No part of the Act is severable. It is impossible to increase capacity (of the intake of the higher educational institutions) in a proper sense in a reasonable manner.
2. The SG says castes are also professional in character. But the criteria of backwardness is much more complex. It involves the principle of inclusion and exclusion. The excluded include rich as well as the poor.
3. Limitations of judicial review: Main arguments of the other side centre around the doctrine of judicial deference – an area where judicial hands must be off. (Justice Pasayat sought to correct him saying the SG did not exactly mean that the judicial review is inapplicable in the present case – Dhawan agreed to reformulate it as judicial deference).
4. The non-obstante clause in Art.15(4) has a limited application. (It shuts out Article 15(1) and 29(2). Article 14 remains. (Justice Thakker pointed out it is an enabling clause.) Level of scrutiny in Constitution varies from Article to Article.
5. What is not in dispute? : Constitution is a social document; There is social justice in Fundamental Rights; the issue of balance (which is partly disputed by Ram Jethmalani), that is, social justice and group rights cannot overwhelm individual rights.
6. Is power under A.15(4) coupled with duty? The concept of power coupled with duty has been rejected in Ajit Singh II and III cases. (Justice Thakker here pointed out that even in absence of A.15(4), (5) and Article 16(4), SG and Mr.Parasaran had pointed out that it is part of Preamble.) Article 15(3) may be justified in the case of women; but here the State’s contribution is deficient. Ajit Singh III is a forgotten decision.
7. There is no obligation to remove historical wrongs. Constitution does not say you must right historical wrongs. It says help the disadvantaged. Reservation is not a penance for past discrimination. It is not retributive justice.
8. Ram Jethmalani’s emphasis on “only” in Article 15(1) and (2) is an over-simplification.
9. There has been an attack on the American doctrines, especially strict scrutiny, from the other side. Agreed that they are not relevant, not binding. But the level of scrutiny is written into the Constitution. Foreign doctrines are illustrative of an idea. Let the Court lay it down. Level of scrutiny is so detailed here.
10. The impugned Act is a farce. Its purpose is to achieve quick results at the expense of education. Is it a reasonable exercise? Is it a correct method to achieve that objective? There is an implicit balance between Article 14 and 15. Scrutiny relevant to this case.
11. If caste is used as a starting point, there has to be a comprehensive look. Until you do a proper survey, rational, balanced and proportionate affirmative action is not possible. Can this process be short-changed? Census is considered divisive. Then information be placed before the Supreme court. The SG says there may be potholes in the criteria. (Justice Raveendran said they say there is a road in existence) Potholes affect rich and the poor. (Justice Pasayat asked is it a walkable road? Pitfalls, not potholes). Government has not placed a proper and comprehensive criteria of backwardness. Court should ask Government to establish criteria for backwardness.
(The rejoinders of Harish Salve and K.K.Venugopal will be posted later)
Thursday, November 1, 2007
Mandal II hearing ends: Petitioners’ counsel reply (P.P.RAO)
The Constitution Bench completed the hearing today. I will sum up the oral replies of P.P.Rao, Dr.Rajeev Dhawan, Harish Salve and K.K.Venugopal to the arguments of respondents’ counsel. In view of time constraints, I am posting Rao first, and others later.
P.P.RAO: On October 31, Rao had a difficult time explaining to the Bench that he was not against expenditure on higher education. First, Justice Pasayat explained that the SG in fact, meant that both primary and higher education can be balanced. Justice C.K.Thakker told Rao: “Your position seems to be that unless 100 per cent school education is achieved, you can’t proceed towards higher education at all”.
Justice Pasayat intervened to say that the SG in fact, said that our lack of progress in basic education cannot be a ground to invalidate the law making OBC reservations in Central government institutions. Justice Raveendran also pointed out that school and higher education are different issues, and cannot be linked. Justice Dalveer Bhandari specifically asked Rao whether it is his argument that till 100 per cent success is achieved in basic education, you cannot spend on higher education.
The Chief Justice expressed his surprise that Rao was in fact suggesting that the Government need not focus and spend on higher education. Rao’s reference to Article 21A mandate did not help. The CJ said: “There are many Constitutional mandates. It is a question of priorities by the Government." Justice Bhandari asked: “If we say Article 21A is to get priority, then are you suggesting that until the goal of Article 21A is achieved, no additional funds can be spent on higher education?" Justice Thakker added: “You cannot correlate”.
Justice Pasayat tried to mollify the criticism of his brother Judges, by asking Rao whether according to him, educational backwardness would disappear with the completion of school education, and therefore, the question of addressing educational backwardness in higher education does not arise. Justice Thakker suggested: “Article 15 has no application at all, because according to you, they are in advanced stage (in higher education)”.
Rao then suggested that educational backwardness can be removed within a time frame. He said there is need for a special package for backward class citizens, to address their educational backwardness.
Then followed the CJI’s retort to Rao: “IITs, IIMs, - should they be closed down? Was the Government wrong in starting IITs, and IIMs, and AIIMS? This is something very strange. Thousands of applications are submitted for admission to these institutions. These institutions have produced many outstanding scientists and engineers."
Rao replied that these institutions should go on. "I am on the point of reservations", he said. He added it is not his case that higher education does not require investment. Those who completed 10+2 belong to creamy layer among the educationally backward; therefore, they must be denied quota. Once you complete +2, you enter the level playing field, he explained.
Rao continued: Mr.Parasaran suggested that Article 19(1)(g) can be abridged, if not abrogated. The Court cannot accept it.
Justice Thakker: Article 19(1)(g) must be read with Article 19(2) to 19(6).
P.P.RAO: On October 31, Rao had a difficult time explaining to the Bench that he was not against expenditure on higher education. First, Justice Pasayat explained that the SG in fact, meant that both primary and higher education can be balanced. Justice C.K.Thakker told Rao: “Your position seems to be that unless 100 per cent school education is achieved, you can’t proceed towards higher education at all”.
Justice Pasayat intervened to say that the SG in fact, said that our lack of progress in basic education cannot be a ground to invalidate the law making OBC reservations in Central government institutions. Justice Raveendran also pointed out that school and higher education are different issues, and cannot be linked. Justice Dalveer Bhandari specifically asked Rao whether it is his argument that till 100 per cent success is achieved in basic education, you cannot spend on higher education.
The Chief Justice expressed his surprise that Rao was in fact suggesting that the Government need not focus and spend on higher education. Rao’s reference to Article 21A mandate did not help. The CJ said: “There are many Constitutional mandates. It is a question of priorities by the Government." Justice Bhandari asked: “If we say Article 21A is to get priority, then are you suggesting that until the goal of Article 21A is achieved, no additional funds can be spent on higher education?" Justice Thakker added: “You cannot correlate”.
Justice Pasayat tried to mollify the criticism of his brother Judges, by asking Rao whether according to him, educational backwardness would disappear with the completion of school education, and therefore, the question of addressing educational backwardness in higher education does not arise. Justice Thakker suggested: “Article 15 has no application at all, because according to you, they are in advanced stage (in higher education)”.
Rao then suggested that educational backwardness can be removed within a time frame. He said there is need for a special package for backward class citizens, to address their educational backwardness.
Then followed the CJI’s retort to Rao: “IITs, IIMs, - should they be closed down? Was the Government wrong in starting IITs, and IIMs, and AIIMS? This is something very strange. Thousands of applications are submitted for admission to these institutions. These institutions have produced many outstanding scientists and engineers."
Rao replied that these institutions should go on. "I am on the point of reservations", he said. He added it is not his case that higher education does not require investment. Those who completed 10+2 belong to creamy layer among the educationally backward; therefore, they must be denied quota. Once you complete +2, you enter the level playing field, he explained.
Rao continued: Mr.Parasaran suggested that Article 19(1)(g) can be abridged, if not abrogated. The Court cannot accept it.
Justice Thakker: Article 19(1)(g) must be read with Article 19(2) to 19(6).
Subscribe to:
Posts (Atom)