Conflict within

The judiciary exposes the hollowness of the government's position and also betrays its own outdated values.

THE brouhaha over the recent stay order on reservation in educational institutions has made it abundantly clear that the king has no clothes. Here the king includes all the three organs of the state, namely, the legislature, the executive and the judiciary. The judiciary has laid bare the nakedness of the legislature and the executive. It has highlighted the hypocrisy of the government in increasing seats while providing reservation for backward classes.

The Supreme Court has pointed out the puerile and silly nature of the government's argument that the number of seats available for the general category is not affected. This carrot argument was rejected with the statement: "If there is possibility of increase in seats in the absence of reservation it could have gone to the general category." The judgment also brought to light the lack of required seriousness on the part of the government in dealing with such an important matter. The Additional Solicitor-General had to concede that there was no periodic review of data as required and that there were imperfections in introducing the policy in question. This might not have been sufficient ground to stay such a statutory provision in furtherance of a constitutional amendment, but it made the government stand in the dock like a child who had failed to do her homework.

In the process, the judiciary also inadvertently betrayed its own nakedness. In addition to exhibiting its lack of deference to policy matters brought through constitutional amendments and statutory provisions, it revealed its preference for a particular kind of constitutional philosophy mimicking the colonial and feudal mindset of the conservative fanatics of the United States.

Americans may not supply nuclear weapons to India; they may, in fact, arrest Indian businessmen and scientists for allegedly supplying weapon-related material to India, as happened recently. But judicial weapons may be readily on offer. The recent carpet bombing, though interim and not final, of the reservation policy for backward classes in education has used such `weapons' of mass obstruction. The tests of strict scrutiny and narrow tailoring, as applied in the U.S. in affirmative action cases, have been widely deployed in this anti-reservation decision. The Judges have referred to the notorious racial segregation case in Plessy vs Ferguson and relied on Brown vs Board of Education to point out that in the U.S. the past discrimination was along racial lines. The judgment heavily relied on the American theory of reverse discrimination, stating that differentiation or classifications for special preference must not be unduly unfair for the persons left out of the favoured groups.

The present judgment has taken note of some of the arguments against the impugned reservation policy to the effect that a time has come to replace the "vote bank" scenario with a "talent bank"; that the statute in question has lost sight of the social catastrophe it is likely to unleash; and that the products would be intellectual pigmies compared with the normal, intellectually sound students passing out at present. These are nothing but the American anti-quota arguments of reverse discrimination and meritocracy, presented in Indian fatigues. The judgment does not seem to have rejected these arguments after taking note of them, though the higher Benches of the Indian Supreme Court have rejected them time and again in the past. Social Darwinism cannot be welcomed by the Indian polity at any cost. Sweeping casteism under the rug is not the scheme of the Indian Constitution. A caste-neutral law in a caste-conscious society such as ours would be disastrous. Though the Americans seem to have learnt this lately from societies like ours in order to reject their kind of colour-blind racism, we are in danger of unlearning this.

The judgment also relied on the recent Grutter decision and the old Bakke verdict to bring in the tests of `strict scrutiny' of `compelling state interest' and `narrowly tailored use' of affirmative action in admission to educational institutions. The present two-Judge Bench ought to have followed the nine-judge decision in the Mandal case, which threw out these tests lock, stock and barrel after analysing the American cases in detail and held that the affirmative action programmes of the U.S. and the reservation provisions in Article 15 and 16 of our Constitution bore no comparison. The Mandal judgment also took note of the fact that the U.S. Supreme Court itself had abandoned these tests in the context of affirmative action. Again, a Constitution Bench of five Judges, while dealing with institutional reservation in admissions to medical colleges, reiterated the view that the strict scrutiny test or the intermediate scrutiny test applicable in the U.S. could not be made applicable in the Indian context (Saurabh Chaudri case). It had also reiterated the presumption of the constitutionality of statutes and governmental actions even in cases of reservation. Earlier, a Bench of 11 Judges in the Pai Foundation case categorically stated in the context of special preferences in education that the burden of proving unconstitutionality is on the one who alleges it.

American situations and history are not directly relevant to the Indian context. However, since the Indian judiciary is sometimes tempted to mimic or emulate American fallacies, it may be apposite to look at the example of the conflict between the executive and the judiciary as a lesson in the context of the recent Indian tensions.

According to Thomas Jefferson, "to consider the judges as the ultimate arbiters of all constitutional questions ... would place us under the despotism of an oligarchy". The executive and the legislature are restrained by the ballot box and the processes of democratic government, as well as by judicial review. But, according to U.S. Chief Justice H.F. Stone, "the only check on the justices' exercise of power is their own sense of self-restraint". Many experts feel that this is not correct and that there is another check in the fact that the judiciary depends upon the cooperation of the other branches of government and compliance by the people. An irate President Andrew Jackson declared: "John Marshall has made his decision, now let him enforce it." In the present Indian situation, the executive and the legislature has not taken any such stand, though they may be unanimous against the stand of the judiciary as in the recent reservation issue. If the Indian legislature and executive take a similar stand and disregard the judiciary's recent stay order, what can the judicio-crats do?

Is there in India an apparent tug-of-war between the judiciary and the other pillars of the state? In matters relating to reservation in favour of the weaker sections of society, there has been a history of unresolved conflicts leading even to amendments of the Constitution. In India, reservation is an arena where several bloody wars between judges and politicians have been waged. Both have almost exhausted their weaponry. Still, volcanic undercurrents of this duet have been taking shape both in Parliament and in the Supreme Court. Constitution Bench hearings on the validity of constitutional amendments neutralising previous court rulings have been numerous and some are still pending. Reservation Bills and proposals for further constitutional amendments are being finalised by parliamentary committees. Is there going to be a real judicio-legislative showdown?

The very first amendment resonated with echoes of this confrontation. One of the initial decisions of the Supreme Court on reservation and quotas in education led to the insertion of Article 15(4) by the First Amendment in 1951. This related to reservation of seats for castes and communities in admissions to educational institutions. The Supreme Court struck down the communal G.O. of the State of Madras providing reservation for backward classes, in the Champakam case. This created a situation that made Parliament insert a fourth clause in Article 15, providing for special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

The subsequent pro-poor and left-of-centre slant of the majority of the Supreme Court Judges subdued these confrontational postures. But by the beginning of the 1990s, there started a shift in the constitutional philosophy of Judges. The Mandal judgment initiated the fresh trend of confrontations. Though by majority the nine-Judge Bench upheld the constitutionality of reservation in government services even for Other Backward Classes (OBSs), it doubted the desirability of reservation even for the Scheduled Castes and the Scheduled Tribes in some specialities and super-specialities. It also reiterated a judiciary-stipulated 50 per cent ceiling for reservation and called for the exclusion of the creamy layer of backward classes. It declared unconstitutional reservation in promotions even for S.C.s/S.T.s, though this was not a point in issue and did not arise in the factual matrix of the case; one of the judges refused to rule on this point on account of this. Of course, as a gesture of judicial mercy or a feudalistic dole, reservation in promotions was allowed to continue for five more years.

This necessitated the beginning of a new era of confrontations. At the expiry of five years, Parliament, in its constituent capacity, had to step in. Thus the 77th Amendment was brought in, adding Clause 4A to Article 16 of the Constitution, providing for reservation in promotions in favour of S.C./S.T.s.

Another judicial missile also invited a counter-offensive from the legislature. To reduce the devastation of the judicial punch of 50 per cent ceiling on reservation, the 81st Amendment was made by introducing Clause 4B in Article 16. The amendment provided that the "unfilled vacancies of a year ... shall be considered as a separate class of vacancies to be filled up in any succeeding year or years and... shall not be considered together with the year in which they are being filled up for determining the ceiling of fifty per cent". Of course, some observers view this amendment as a `Trojan horse' brought in by the National Democratic Alliance government, which made the 50 per cent ceiling a constitutional concept for the first time, though the amendment was brought under the pretext of making an exception to rule. Nobody needs to teach the lawmaker Manu and his successors that an exception proves the rule.

Parliament had to use its constituent power to amend Article 335 to neutralise its interpretation to the effect that it did not permit relaxation of qualifying marks in any examination or the lowering the standards of evaluation for reservation in matters of promotion for S.C.s/S.T.s. A proviso was added to Article 335 by the Constitution (Eighty-second Amendment) Act, 2000, restoring the relaxation of qualifying marks.

Then there was the Constitution Bench decision in the Ajit Singh Januja case, declaring that members of S.C./S.T. would not be entitled to consequential seniority if they were promoted following the roster points for reservation. They would lose their seniority to the non-reserved juniors in the promoted cadre if they were seniors in the feeder cadre. To allow consequential seniority to reserved candidates, the Constitution (Eighty-fifth Amendment) Act, 2001, was passed with effect from June 17, 1995.

These amendments were challenged by the general (unreserved) categories on the grounds that they violated the basic structure of the Constitution. A Constitution Bench in the Nagaraj case reluctantly upheld these amendments, introducing new problems and issues, which may necessitate further amendments.

In the meantime, the Tamil Nadu Assembly jumped the 50 per cent ceiling and sought the shield of Article 31B and the Ninth Schedule. Thus the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services Under the State) Act, 1993, was placed in the Ninth Schedule by the Constitution (Seventy-sixth Amendment) Act, 1994. This law, and the constitutional amendment, were tested with other such laws in the Ninth Schedule case (Coelho judgment) before another Constitution Bench.

A seven-Judge Bench prohibited reservation for backward classes in private unaided professional colleges, which necessitated the 93rd Constitution amendment, introducing Clause (5) to Article 15, providing for such special provisions. It was in pursuance to this clause that the statute under challenge was enacted. Now, in view of the present stay order, the executive and legislative wings would be looking for ways to wriggle out of or confront the present predicament.

Could a Division Bench of the Supreme Court consisting of two Judges have passed the stay order in a case like the present one? The Constitution has a mandatory provision with regard to the number of Judges who sit for the purpose of deciding such a case, involving a substantial question of law and interpretation of the Constitution. Clause (3) of Article 145 requires that the minimum number of Judges to decide any such case shall be five. To pass a judgment and stay the operation of the statutory provision required an interim decision that the said statutory provision was prima facie unconstitutional. No doubt, it involved a substantial question of law. It also required an interpretation of the Constitution. The statute came into being in pursuance to Article 15(5) introduced by the 93rd constitutional Amendment. This has not been interpreted in any manner so far by the Supreme Court. Thus the present case clearly required an interpretation of the Constitution.

Moreover, the main grounds of challenge was the faulty identification of backward classes and the necessity of excluding the creamy layer. Even if the Bench of two Judges was not finally deciding the matter, judicial decorum and deference to the said constitutional provision would require that the Bench refer the matter to a Constitution Bench of five Judges instead of suspending the statute as it applied to backward classes.

Above all, the judgment gives an impression that there are no backward classes in India and their existence is a figment of the imagination of the political class. Even if some classes are there, it seems to say, these are filled with the creamy layers who occupy almost all the seats in prestigious educational institutions year after year, dislodging meritorious students belonging to the Brahmin and Kshatriya communities. What a stark reality! But light years from the truth. The Supreme Court has, for sure, been taken for a ride. At any rate, this undesirable and avoidable tug-of-war appears to be the product of a conjoint adolescent adventure by all the three respectable organs of the state.

M.P. Raju is a lawyer and author based in Delhi.