Post-Thakur Analysis: A Discovery

Apart from the articles which Arun cited, there are two more worth reading. One by Abhishek Singhvi, and another by Praful Bidwai. Both have commented on the Bench’s opinion expressed in a particular paragraph. Singhvi's piece appeared in his column in Hindustan Times today while the latest Frontline carries Bidwai's column, Beyond the Obvious.
Singhvi says the interim order suffers from a certain degree of gratuitous dicta when it opines, and that too in an interim order, that “nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere…is there competition to assert backwardness and…to claim that we are more backward than you.” Singhvi says: one is certainly entitled to that opinion but when converted to judicial dicta, it treads directly on policy prescriptions sanctified by constitutional text. Since this could not have been the basis of the interim order, it was superfluous and unnecessary.
Commenting on the same paragraph, Praful Bidwai says: “People do not celebrate or enjoy backwardness. They suffer it and face discrimination, insult and humiliation because of it. Mocking at their aspirations to overcome backwardness betrays casteist prejudice.
As the interim order which carries this paragraph sourced it to Indra Sawhney judgment approvingly, I was curious to know the context in which the nine-Judge Bench made the observation. To my surprise, I discovered that it was not the Nine-Judge Bench in that case which made this observation. Indra Sawhney probably does not even refer to this, if I am not wrong. It was in fact made by Justice O.Chinnappa Reddy in K.C.Vasanth Kumar v.State of Karnataka (1985) [Supp. SCC 714.]
The interim order says in paragraph 21:

“The concept of creamy layer cannot prima facie be considered to be irrelevant. It has also to be noted that nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you. This truth was recognized as unhappy and disturbing situation and such situation was noted by this Court as a stark reality in Indra Sawhney's case (supra).
Justice O.Chinnappa Reddy’s judgment in K.C.Vasanth Kumar begins as follows: (Paragraph 32)
“Over three decades have passed since we promised ourselves "justice, social, aconomic and political" and "equality of status and opportunity". Yet, even today, we find members of castes, communities, classes or by whatever name you may describe them, jockeying for position, trying to elbow each other out, and, viewing with one another to be named and recognised as 'socially and educationally backward dashes', to quality for the 'privilege' of the special provision for advancement and the provision for reservation that may be made under Article 15(4) & 16(4) of the Constitution. The paradox of the system of reservation is that it has engendered a spirit of self denigration among the people. Nowhere else in the world do castes, classes or communities queue up for the sake of gaining the backward status. Nowhere else in the world is there competition to assert backwardness and to claim 'we are more backward than you'. This is an unhappy and disquieting situation, but it is stark reality. Whatever gloss one may like to put upon it, it is clear from the rival claims in these appeals and writ petitions that the real contest here is between certain members of two premier (population-wise) caste community classes of Karnataka, the Lingayats and the Vokkaligas, each claiming that the other is not a socially and educationally backward class and each keen to be included in the list of socially and educationally backward classes. To them, to be dubbed a member of the socially and educationally backward classes is a passport for entry into professional colleges and State services ; so they jostle with each other and in the bargain, some time they keep out and some times they usher in some of those entitled to legitimate entry, by competition or by reservation. Commissions have been appointed in the past to identify the backward classes, Governments have considered the reports of the commissions, and Courts have scrutinised the decisions of Governments; Cases have reached the Court too, then and now again. Once more we are told that the State of Karnataka is ready to appoint another commission and they have asked us will you kindly lay down some guidelines?"
Note that the interim order cites the words, “but it is stark reality”, but infers something else not intended by the original author of this passage. The words are significant, because it is these words which explain why Justice Chinnappa Reddy treats caste as the primary index of social backwardness in that judgment, and opines that there is an over-powering mutuality between poverty and caste on the Indian scene – a proposition with which the interim order is probably at odds.

Post-Thakur developments and analysis

The stay order in Ashoke Kumar Thakur is generating considerable governmental activity and news-analysis.

Today's issues of The Indian Express and the Hindu carry stories about the UPA government's overall strategy for vacating the stay on OBC quotas granted by the Supreme Court, a move which the stories predict will be resorted to within the week. The latest issue of Frontline has a cover story and related features focusing on the stay order granted in Thakur, including a piece and an interview conducted by our co-blogger, V. Venkatesan, who reiterates his views expressed in posts on this blog. This issue also includes a biting analysis of the order and its sorrounding circumstances by M.P. Raju, which is both provocative and insightful by turns. He pours scorn over the motivations of, and justifications offered by, the judiciary and the executive/legislature, and argues that the entire episode casts each of the wings of government in India in poor light. He also comments insightfully about the references to U.S. constitutional law in the stay order ( a topic that merits a separate post in itself).

Adopting a different standpoint, Yogendra Yadav argues that the stay order poses a delicate issue, and should be handled carefully. In a piece available at Outlook magazine's website, Yadav, who has conducted insightful academic research on this issue, argues for sobriety, calm and a spirit of moderation in asserting:

"The questions posed by the Supreme Court in its interim order should be seen for what they are, namely questions. The stay order does not question the foundations of the settled policy on affirmative action. It simply asks some hard questions necessary for fine-tuning the affirmative policies. I think these are fairly reasonable questions that anyone would wish to ask. Therefore, instead of trying to find out how not to respond to these questions, the government would do well to think hard about how to give straight answers.

The SC order could and should be turned into an opportunity to fine-tune the reservation policy. It is a delicate moment. A hasty or knee-jerk response of the kind suggested by some champions of social justice could actually lead to a rejection of the policy itself. ... Missing this opportunity could lead to irreversible damage to the cause of social justice."

Inder Malhotra and Harish Khare have contributed op-eds in the Express and Hindu respectively, where they offer somewhat contrasting views on recent developments involving the three wings of government. Malhotra, whose biography of Indira Gandhi is considered among the best available, recalls her efforts at securing a 'committed judiciary' as a cautionary tale in analysing current developments, and argues for respecting judicial authority for both pragmatic (the judiciary commands greater respect than the other wings) and principled reasons. Khare is more critical of recent judicial developments as well as practices within the judiciary, and his piece appears to be aimed at setting out guiding principles for Chief Justice Balakrishnan to implement.

Judicial Nepotism: Behind the Government's concern

The Union Law Ministry seems to have suddenly woken up to the danger posed by Judicial nepotism to judicial integrity. Its letter to the Bar Council of India - as reported by the NDTV -renews the debate on the issue. The BCI, which has disciplinary control over advocates, introduced Rule 6 with the hope that the Judges themselves would decline to be appointed in those courts where their relatives practised. The BCI knew that it would be difficult to ask advocates who have established good practice in a court to shift to another court just because their relatives had been appointed Judges there. That was why the BCI was reluctant to enforce the rule.
It can be argued - as sections of the Bar and the Bench have done - that the rule cannot be invoked against advocates as long as they do not argue cases before the Judges who are related to them. But the BCI favours a liberal interpretation of the rule in the face of allegations in the Bar that some Judges favour each other indirectly by obliging each other's advocate-kin. What is shocking is the sheer number of Judges and advocates who are their relatives working in the same courts, across the country. On July 28, 2003, the BCI forwarded to the Union Law Ministry a list of 131 Judges (out of a total 499) in 21 High Courts and 180 advocates with their names and nature of relationships. It appears there has been no substantial progress since then in judicial clean-up.

The Indian media's obsession with 'clashes' between the Judiciary and the Executive/Legislature

The lead stories in today's online issue of the Indian Express and the Hindu would have readers believe that Prime Minister Manmohan Singh has fired a salvo at the judiciary, thereby raising the spectre of a clash between the executive/legislature and the judiciary, especially over the issue of OBC quotas.

Digging a bit deeper into the background context reveals that this may be yet another over-reaction on the part of the media, and a sign of its constant need to generate controversies and imagine mountains every time it sees molehills.

The Prime Minister's remarks were delivered on the occasion of the annual conference of the Chief Ministers and Chief Justices of High Courts, which is chaired by the sitting Chief Justice of India, and has become an important forum for discussing policy issues relating to the judiciary as a whole. The agenda for this year's Conference, as posted on the website of the Supreme Court of India, is available here. (click on the first topic, and a Word document containing the detailed agenda will open up). Reading this together with the full text of the Prime Minister's speech (which is now available at the website of the PMO), makes it clear that the Prime Minister was making fairly obvious and non-controversial points in reacting to the agenda for the conference. The issue of PIL, for instance, was already on the agenda of the meeting, and in making his comments about preventing abuse of PILs (a point which has been made by innumerable jurists including sitting judges), the Prime Minister was not saying anything radical or new. Indeed, as one reads the PM's speech together with the agenda for the conference, it is clear that his speech was almost a point-by-point enumeration of the issues listed on the agenda.

While the media is fully entitled to parse leaves, and read between the lines, I cannot help wondering if in this case, it may be sniffing up the wrong tree. The event, one must remember, must have been planned months ago, and the mere fact that it coincides with the unfolding controversy over OBC quotas doesn't necessarily mean that we are headed for the long-awaited 'clash of the titans'. (For a similar over-reaction to a speech delivered by President Kalam in Nov 2005, see this post from the archives of the blog).

Even reading the quoted statements as full sentences reveals the problem with the interpretation being accorded by the media to statements which seem obvious and non-controversial. I will reproduce the relevant parts of the speech, which read like good advice for the three wings of government to bear in mind at all times. This may also account for why Chief Justice Balakrishnan seemed unperturbed when asked for his reaction to the PM's statement by the media. Looked at as a whole, it is hard to take exception to the expressed words and sentiments.

Here are the quoted statements:

“I feel privileged to be once again at this very important conference of Chief Ministers and Chief Justices of our High Courts. These are important and useful opportunities for representatives of the executive, the legislature and the judiciary to interact, both formally and informally. Apart from discussing various issues on the agenda, I hope each one of you will use this opportunity to gain a better understanding and appreciation of the other’s concerns and preoccupations. In this way this conference would be an important asset in mutual comprehension. Unless the three wings of the State understand each other better, they will not be able to function effectively in the interests of our nation and our people at large. The three wings have well defined roles and functions under our Constitution. However, all the wings have a common goal – which is the fulfillment of the hopes of the founding fathers of our Republic and as spelt out so clearly in our magnificent Constitution. Therefore, conferences such as these give us an opportunity to discuss contemporary issues which have a bearing on the organs of the State, particularly those issues where the interface between the organs is large.

... ... ... There are a few issues, which have been flagged for this Conference [by the organisers]. The most important issue is that of “pendency” and the growing backlog of cases in courts. ... ...

I do sincerely believe that the judiciary, the executive and the legislature have an obligation both to our Constitution and to our people, to work in harmony. Each one of these organs of the State have an important and vital role to play in improving the welfare and well-being of our people. Each one of the organs have their Constitutionally assigned roles and responsibilities, and these must be discharged in all honesty. Each organ must respect the roles and functions of the other. Powers accorded to each organ must be exercised cautiously.

In the context of judicial reform, the primary obligation is to enforce the rule of law, uphold the Constitution and enforce the discharge of obligations by any authority of the State. This confers enormous powers on our judiciary, rightly so. But at the same time it also involves enormous responsibility - in the exercise of these powers. Courts have played a salutary and corrective role in innumerable instances. They are highly respected by our people for that. At the same time, the dividing line between judicial activism and judicial over-reach is a thin one. As an example, compelling action by authorities of the state through the power of mandamus is an inherent power vested in the judiciary. However, substituting mandamus with a takeover of the functions of another organ may, at times, become a case of over-reach. These are all delicate issues which need to be addressed cautiously. All organs, including the judiciary, must ensure that the dividing lines between them are not breached. This makes for a harmonious functioning.

So is the case with Public Interest Litigation. PILs have great utility in initiating corrective action. At the same time, PILs cannot become vehicles for settling political or other scores. We need standards and benchmarks for screening PILs so that only genuine PILs with a justiciable cause of action based on judicially manageable standards are taken up. This will also ensure consistency in judicial pronouncements. The Supreme Court could take the lead in framing rules in this regard.

Conferences like these can play a very important role in helping us understand each other better and work together in the discharge of our respective duties. I hope it is in this spirit that these proceedings will be conducted. I wish you all success in your endeavour. I thank you.”

Update: April 10, 4pm The full text of the speech delivered by Chief Justice Balakrishnan at the same event is now available at the Court's website. (This is a very welcome development, and one hopes that such alacrity will become a regular feature of other aspects of our judicial system). For me, reading the text of the speech resulted in a very different impression of the tone and substance of his remarks (to be contrasted with the impression conveyed by this newsitem in yesterday's IE). It seems to me that in the hullabaloo over the implications of the CJI's fairly innocuous opening remarks, the more significant contents of the speech, where he outlines the latest official figures about judicial delay in the Indian legal system, have gone unnoticed. Here are the parts of the speech where the actual figures are discussed:

"The real problem is that the institution of cases in the Courts far exceeds their disposal. Though there is a considerable increase in the disposal of cases in various courts, the institution has increased more rapidly.High Courts increased their annual disposal from 980474 cases in the year 1999 to 1450602 cases in the year 2006, the cumulative increase being 48% in seven years, without there beingcommensurate increase in the strength of judges. However, the institution increased from 1122430 cases in the year 1999 to1589979 cases in the year 2006 leading to increase in pendencyfrom 2757806 cases as on 31st December, 1999 to 3654853
cases as on 31st December, 2006.

Subordinate Courts disposed of 15842438 cases in the year 2006 as against 12394760 cases in the year 1999, thereby, increasingthe disposal by 28% in seven years without any substantial
increase in the strength of Judges. However, the institution increased from 12731275 cases in the year 1999 to 15642129 cases in the year 2006, resulting in the pendency getting increased from 20498400 cases as on 31st December, 1999 to 24872198 cases as on 31st December, 2006 The average disposal per Judge comes to 2374 cases in High Courts and 1346 cases in Subordinate Courts if calculated on the basis of disposal in the year 2006 and working strength of Judges as on 31st December, 2006. Applying this average, we require 1539 High Court Judges and 18479 Subordinate Judges to clearthe backlog in one year. The requirement would come down to 770 more High Court Judges and 9239 more Subordinate Judges if the arrears alone have to be cleared in the next two years. The existing strength being inadequate, even to dispose of the actual institution, the backlog cannot be wiped out without additional strength, particularly, when the institution is likely to increase and not come down in the coming years.

... ... ....On the recommendations of 11th Finance Commission Fast TrackCourts of Sessions Judges were set-up for disposal of long pending sessions and other cases. These courts have been quite successful in reducing the arrears. Most of the criminal cases in ubordinate Courts are pending at the level of Magistrates. 16677657 criminal cases were pending before Magisterial Courts as on 31st December, 2006. Keeping in view the performance of Fast Track Courts of Session Judges, Government of India should formulate a similar scheme for setting-up Fast Track Courts ofMagistrates in each State, as recommended by the previous Conference of Chief Ministers and Chief Justices held on 11th March, 2006.

The pendency of Civil cases in Subordinate Courts has increased from 6925913 cases as on 31st December, 2000 to 7237495 cases as on 31st December, 2006. It is common knowledge thata large number of pending civil cases are very old. Huge arrears of civil cases cannot be wiped out by regular courts. It is, therefore, necessary to set-up Fast Track Civil Courts and transfer part of the pending Civil cases to those Courts for disposal.

As many as 5201876 cases involving petty offences were pending in Magisterial courts as on 31st December, 2006. Since the pendency before regular magisterial courts is very high, we need to transfer such cases to courts of Special Magistrates to be manned by retired judicial officers/senior government servants, as decided in the last Conference of Chief Ministers and Chief Justices. State Governments should take immediate steps to appoint such Magistrates in adequate number and provide necessary infrastructure for them."

SC's Stay on Mandal II: A response to Mr.Vivek Reddy

At the outset, let me welcome Mr.Vivek Reddy to our lively blog. I look forward to reading similar spirited debates, which the SC's Mandal decision has provoked in our blog.
To begin with, I must admit that there are certain areas of disagreement. Mr.Reddy starts with the premise that the objective of quotas is to ensure freedom of opportunity for social and economic advancement. Reservation is group-oriented, not individual oriented. Many Benches of the Supreme Court have upheld this view. One consequence of this view is that we can't hope to empower all the individuals. There may be individuals in a group, who are not beneficiaries of this group-based reservation, but this is inevitable.
Secondly, I have not opposed judicial review of reservation. My only ground for opposing the latest stay of the two-Judge Bench is that it is not based on any reasoning at all.
Thirdly, Mr.Reddy says Constitution commands creation of a casteless society. I don't think his belief is correct. Constitution only guarantees a right against caste-based discrimination. Caste is one of the prohibited grounds of discrimination along with others, such as sex, religion, region etc. We cannot, therefore, conclude that Constitution commands a sexless, a religion-less society. The word `only' has to be noticed in Equality Articles. It prohibites discrimination on the basis of only caste, sex, etc. Courts have held that if you combine one of these prohibited grounds along with other non-prohibited grounds, then the discrimination resorted to is valid. It is now fairly clear that Mandal List/State Lists/ the Govt. of India's lists are not based only on caste factor, but is based on a multiple criteria. The Mandal Commission for instance, evolved a multiple criteria, and gave different weightage to each criteria, and whichever caste secured 50 per cent weightage, then it was put in the list. Caste was considered as a unit, along with others, and this has been found valid in the Indra Sawhney judgment.
I admit my view that "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" is not tenable. I stand corrected, having found Mr.Reddy's arguments very persuasive.
His elaboration of Justice Jeevan Reddy's qualifications to identify backward classes is helpful. There are two stages. One is identification, and then revision. Indra Sawhney, no doubt, elaborates how a backward class can be identified. And it has approved the way the Mandal commission did it. The once-in-10 years survey is relevant for revision. Now, can the NCBC be faulted for its stand that a survey-based revision within 10 years is unlikely to result in removal of any class from the list? Still, I agree that there is a need to revamp the NCBC and even a direction could be issued to it by the Court to follow the guidelines if any in the Indra Sawhney judgment with regard to revision. The List was found valid in 1992, and the implementation started in 1993 with regard to public services. How could there have been so many classes within 10 years who might have become ineligible to be in the list in terms of SEBC criteria? It is in this context, I referred to the government's instinctive feeling that a survey or a head-count may not be necessary to arrive at a conclusion which is obvious: that there may not be any caste which deserved to be removed from the list within the course of 10 years. Still, if the petitioners have any reason to challenge it, they could have approached the NCBC, with their complaint. They have not done so.
I am not sure -as Mr.Reddy thinks - that the Indra Sahney judgment requires the Government to undertake a fresh identification of SEBCs (as compared to revision for the purpose of exclusion and inclusion) on the basis of a head-count or a survey, however imperfect it may be. May be I need to study the relevant parts of the judgment, to convince myself. I am in agreement that a fresh survey, even similar to what the Mandal Commission had undertaken - could be initiated, but till such time, the existing lists need not be abandoned, as it would amount to depriving the benefits of the really needy classes. The 2-Judge Bench, the petitioners, and Mr.Reddy all seem to believe that much water has flown over the 10-15 years, that some communities, who do not fulfil any criteria of SEBC, are enjoying the benefits under the list. This assumption, in my view, has to be tested, by taking some representative castes, like Vokkaligas, for instance, and assess their relative backwardness. I have my reservations about the merits of doing a survey of the population, because it brings the proportionality element. Supposing if a State is predominantly illiterate, and socially backward, would not the proportionality element result in pruning of the list of OBCs in that state to unacceptable and even unconvincing level?
I agree that under the presumption of constitutionality principle, the burden of proof shifts to the Government, once the petitioner begins to show that the statute is unconstitutional. In this case, the petitioners have made only empty assertions and allegations. There is not even a prima facie ground. I did not say that the petitioners must prove absence of data. The Government has presented to the Court in its counter-affidavits why it thinks the data behind the OBC lists are objective material, citing Justice Pandian's judgment in the Indra Sawhney, which considered similar objections against the data.
The petitioners' main ground of attack is that 52 per cent OBC population figure is not credible. But they are not saying whether the 27 per cent quota is excessive or less. I agree with Mr.Reddy, that whatever percentage of SEBC population, they deserve protection. Therefore, if a 27 per cent quota is fixed, in view of the 50 per cent ceiling, why should there be any objection from the petitioners?
There are some indications that the two-Judge Bench was confused, and this led to lack of objectivity. In paragraph 31, they say that the lists relatable to Article 16(4) form the foundational base for Article 15(5), the source of the latest law. Now, both the Bench and the petitioners seem to challenge the credibility of the lists relatable to 16(4), even though Indra Sawhney Bench had upheld those lists. By entertaining the petitions against these lists, is not the two-Judge Bench shaking the basis of the 16(4) reservations also? If the lists are all right for 16(4), then the SC appears to say, it has no problems if creamy layer is excluded under 15(5), if the same lists are adopted under the Act being challenged. Therefore, SC would not appear to question the credibility of the lists as such. As far as the creamy layer also, the Bench would like to examine the Govt.'s stand in detail. It is in this conceptual confusion, and lack of self-confidence that it could stay the operation of Section 6, (many would deem it as overruling the Indra Sawhney judgment by a smaller bench), the Bench has perhaps found it desirable to keep S.6 in hold. Is not the Government correct in seeking a clarification whether it amounts to a stay, and if it is,, should not a larger Bench (than Indra Sawhney) hear the matter? After all, if the lists are not credible, because of the lack of survey etc, then the 16(4) quota also would come under attack.
( I am thankful to Dr.M.P.Raju, advocate, Supreme Court of India for helping me to understand some of the issues, and Mr.P.S.Krishnan, advisor to Human Resources Development Minister, Arjun Singh, for clarifying certain doubts. However, I am alone responsible for any gaps that the reader may come across in the post.)

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.