Reflecting on Sorabjee's response to the Speaker's public lecture

The previous post focused on Somnath Chatterjee's recent public lecture where he seemed to be providing a theoretical and intellectual framework to the current struggles between the Legislature/Executive and the Judiciary, and also counselled the judiciary on its future course of action.

Predictably, the Speaker's strong message has evoked an equally forceful response. Today's Indian Express carries an op-ed by Soli Sorabjee who has long been a defender of the Judiciary, even while he has occupied the position of a law officer of the government. While reacting specifically to the Speaker's comments, Sorabjee also reiterates positions he has canvassed over a considerable period of time, in academic articles and public lectures. His views in this column consist of a mix of the traditional arguments raised in defence of judicial activism in India, as well as newer points relating to the current context. At the same time, Sorabjee attempts a point-by-point rebutall of the views expressed by the Speaker. While the piece should be read in its entirety, I focus on the following portions:

"Remember that it is thanks to judicial creativity or if you like judicial activism, that certain freedoms like freedom of the press, the right to privacy, the right to travel abroad, the right to education, freedom from cruel and inhuman punishment or degrading treatment have acquired the status of fundamental rights. This is because of Supreme Court decisions that certain unspecified rights are implicit in the express enumerated guarantees in the Constitution and can be deduced therefrom. Would any person, including the speaker, seriously quarrel with this innovative judicial technique, which has enlarged the fundamental rights of our people?

... ... ...

Another assumption in the speaker’s lecture is that courts strike down legislation because of disapproval of legislative policy. Far from it. The Supreme Court did not strike down nationalisation of banks because of its disapproval of the policy of nationalisation. Indeed the court rejected the challenge that the legislation was not in public interest. The Act was struck down because of the omission to provide for compensation under the then existing constitutional provision. The Act was subsequently amended and nationalisation went through. The Supreme Court, in its judgment in the BALCO case, has authoritatively ruled that it is not permissible for courts to strike down a policy decision on the ground that it is unwise or unscientific or uneconomic or illogical or that there could be a better policy decision.

Proper research and statistics would establish that in a vast majority of cases the Supreme Court has upheld socio-economic legislation by invoking the doctrine of presumption of constitutionality of a law and also the unreal presumption that the legislature correctly understands the needs of its people.

... ... ...

Mention of ‘we the people’ in the Preamble and the will of the people in passing a law are certainly relevant considerations but are not decisive in constitutional adjudication of the validity of the law in question. What is controlling is the mandate of the Constitution. Suppose by an overwhelming majority a law is passed which outlaws strikes and demonstrations by government employees, or which sanctions gender discrimination by prohibiting employment of women in any section of the armed forces. Are courts bound to uphold such laws, which violate the fundamental rights of workers and women, on the ground that the will of the people must prevail? Such a stand makes a mockery of judicial review by an independent judiciary, which is a basic feature of our Constitution.

Enumeration of a list of erratic orders passed in PIL makes interesting reading but is not an answer to the legitimate exercise of judicial activism in several other cases. Many over-enthusiastic impermissible judicial orders passed by the high courts have been set aside by the Supreme Court, and exemplary costs have been imposed.

The undeniable fact is that in most cases, it is on account of the lethargy or continued inaction of the executive branch that the court is constrained to direct the executive to implement the laws made by the legislature, particularly when such inaction results in violation of fundamental rights. For example, violation of the rights of children working in hazardous occupations or of the fundamental right to live with dignity of the inmates of asylums and so-called care homes.

... .... ... Let us not forget that thanks to PIL, undertrial prisoners rotting in jails for inordinately long periods, inmates of lunatic asylums and care-homes, children working in hazardous occupations have secured relief. Juristic activism in the arena of environmental and ecological issues has led to accountability in the use of hazardous technology and has yielded salutary results. For example: court’s directions regarding the use of CNG. If this be judicial activism, so be it. The executive may bemoan the court’s directions compelling it to discharge its obligation of law enforcement. The citizens rightly rejoice, because thanks to activist judicial intervention, some semblance of governance and decency in areas affecting their lives has been achieved.

... ....Vigorous exercise of judicial review, in other words judicial activism, largely depends on the prevailing situation in the country, its laws or absence of laws, the level and quality of public administration and the availability of means of redress. It is not static. It cannot be strait-jacketed into a rigid formula. The extent and intensity of judicial review depend on the subject matter of the legislation. In case of socio-economic legislation, judicial activism should be minimal. Where legislation violates fundamental rights of equality, life and liberty, and freedom of expression, judicial activism is not an option but a necessity if the fundamental rights of the indigent and the exploited are to be made living realities.

Alas! We do not live in a perfect world in which there would be no occasion for the judiciary to order the executive to perform its duty of implementing the laws. In this imperfect state of affairs, if the judiciary sometimes exceeds its bounds by passing certain orders, the same should be corrected, but that is no reason for questioning the legitimacy of judicial activism and advocating judicial restraint to the point of judicial abnegation. All said and done judicial review is the heart and soul of our Constitution. "

In making these remarks, Sorabjee appears to be responding not only to the Speaker's lecture, but also to comments made by other politicians in the aftermath of the Thakur order, about the supposed anti-democratic nature of judicial review. Despite his forceful tone, Sorabjee does not, however, endorse judicial activism in general, and concedes that the role of courts in bringing about socio-economic reforms should be limited. But, he points clearly and forthrightly to the 'elephant in the room' that Chatterjee's lecture sought to ignore - that the fundamental problem in Indian governance is not so much that the judiciary is over-enthusiastic, but that the institutions which should be governing are, for a variety of reasons, unable to do so.

In the course of his comments, Sorabjee makes the oft-cited claim that PIL has been a panacea for the Indian populace. This claim in increasingly being contested, as it is becoming evident that many PIL orders have either been ignored or under-implemented. There is also the perception among social activists that the changing nature of PIL (which is increasingly being initiated by the middle class for causes that serve its interests) is causing it to become a tool against the interests of its original constituency: the poor, disempowered and oppressed communities among Indians. Those who disagree with Sorabjee's characterisation of PIL (or would seek to moderate his enthusiastic portrayal of it) would subscribe to the views espoused in this recent editorial in the EPW:

"Of late, the judiciary is giving the impression of stepping in to fill the vacuum by often forcing the executive to take action (against the privileged sons of politicians, as in the Jessica Lal case) or compelling Parliament to enact laws (for example, to curb sexual harassment at workplaces). This has encouraged the Indian urban middle class to repose its faith in the new-found concept of judicial activism, and to wish that the judiciary replaces the corrupt legislature and bureaucracy as the benevolent authority. But there is a catch in this wishful belief. Barring a
few recent cases of judicial intervention, which have had some positive effect on governance, the Indian judiciary on the whole has not displayed any spontaneous will to act on behalf of the common people. The success stories, cited above, were the results of long legal battles by the rich relatives of the victims, or campaigns by social activist groups.

Contrary to the image of a magnanimous judiciary, judicial activism is increasingly sliding into injudicious and irresponsible judgmentsheavily loaded against large sections of the poor and marginalised. To quote a couple of instances, thousands of workers have been uprooted due to court orders to shift polluting industries out of Delhi and slumdwellers are facing removal to far outside the city as a result of a Supreme Court declaration that they have no right to notice before eviction or rehabilitation thereafter. In the short-sighted pursuit of delivering justice to some segments, such judgments are creating new long-term injustices for vaster sections of the population. Further, the breathtaking eagerness with which the judiciary has over the past decade upheld draconian laws like the Terrorism and Disruptive Activities (Prevention) Act (in 1994), the Armed Forces (Special Powers) Act (in 1997) and the Prevention of Terrorism Act (in 2004) portends an ominous future for the democratic rights of Indian citizens."

This debate points to the dire need for comprehensive and meticulous quantitative studies of the actual impact and achievements of the PIL jurisprudence of the Supreme Court. For over three decades now, opponents and defenders of judicial activism have used isolated examples to either attack or glorify the phenomenon. The need for detailed studies which help answer at least some of the questions raised seems evident. The late Professor Sathe is known to have spent several years collecting the data for precisely such a project. One hopes that the project has not been given up after his passing.

An aside: One of the interesting parts of the Chatterjee-Sorabjee exchange is how they have both sought to draw support from the views and judgments of former Chief Justice J.S. Verma to buttress their own positions. The EPW editorial, by contrast, reminds its readers that Justice Verma is also to be remembered for his contribution in another landmark case:

"A dangerous example of such judicial mindlessness was the 1995 Supreme Court benchverdict in favour of Hindutva which put the seal of approval on the politico-religious philosophy of the saffron brigade. Surprisingly enough, J S Verma, the then chief justice who headed the bench that passed the verdict, was to lament in May 2002 following the Gujarat riots that his judgment was being “misused” by many for narrow interests. In a lecture in Jabalpur recently, justice Verma asserted the need for “greater expertise and self-restraint of the judiciary…eschewing personal predilections and emotive responses.” A belated realisation when the damage had already been done! "

The EPW editorial got its facts wrong on one small point : at the time when the decision in Dr. Ramesh Prabhoo v. Prabhakur Kunte (1995) (popularly known as the 'Hindutva' case) was handed down, Justice Verma was not yet the Chief Justice of India (his tenure as CJI lasted from March '97 to Jan '98). However, the editorial is right in noting that whatever may have been Justice Verma's motivations as the principal author of the decision, it was perceived by the Hindu right parties, and by those who backed them, as a victory for their political views.

Contentious issues beyond quotas: The Forests case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mandal II: The propriety of CJI's intervention

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

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

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

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

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

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

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

The Mandal II Debate:More Questions than answers

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

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

Misconceptions in the OBC Quota Debate - Part I

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why No Skimmed Quotas under Article 15?

Since Mr. Venkatesan is such a forensic interpreter of our Court's jurisprudence and the larger political canvass regarding reservations, I would like him to elaborate his assertion that the creamy-layer requirement under Article 16 (4) is to be handled differently under Article 15 (4). I, for one, am unable to comprehend what "peculiar differences" exist between jobs and educational seats that would make the creamy-layer requirement apply to one type of reservations and not to the other. As Pratap Bhanu Mehta says, the government has failed to articulate a proper justification to avoid the creamy layer issue in education.

I must admit I have not read the recent cases on reservations quite carefully as I have wandered away from that field for a few years. Yet, having studied the subject quite intently earlier, I question whether it is appropriate to confine Indira Sawhney's creamy-layer requirement to only public employment. I cannot recall anything in Justice Jeevan Reddy's majority decision for the constitution bench that limited "skimming" the creamy layer to jobs. It is true that the underlying case involved the constitutional validity of the 1990 office memos implementing the Mandal recommendations. But, if I recall correctly, the matter was first placed before a constitution bench of five judges. It was subsequently referred to a nine-judge bench "with a view to finally settle the legal position relating to reservation."

With this mandate, the judges in Indira Sawhney covered a wider canvas of issues than just that the validity of the office memos implementing the Mandal recommendations. In fact, during the hearings, the government's lawyers asked the court not to consider reservation in promotion for SCs and STs on the ground that the issue was not before the Court. The Court rejected that objection and proceeded to overrule Rangachari's Case, which ultimately resulted in a constitutional amendment. Therefore, I am unconvinced by attempts to restrict the scope of Indira Sawhney's holding to Article 16 (4), which I must say, was a fair and balanced decision given the competing constitutional interests at stake.

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

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

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

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

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

Dear Vikram and Arun,

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

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

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

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

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

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

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