In view of extraordinary interest in my posts on oral arguments in the Mandal II case, I am posting below the summaries of rejoinders of Harish Salve and K.K.Venugopal, as I could gather from my notes taken on Nov.1. I must admit that these are not exhaustive, as I might have missed out some crucial aspects of their arguments, due to my absence in the Court. Although I have tried to be as accurate as possible in reporting the arguments, I take responsibility for any inaccuracy (which could be unintentional).
I wish to return to their arguments, and also to others’ arguments whom I might have missed for want of time (especially, that of Mr.Parasaran and Mr.Gopal Subramanian) within a few days (before the Bench delivers the verdict), by closely examining all the written submissions, to find out whether we have answers (may be conficting) for all the questions raised by the Bench at the time of the reference.
Taken together, all these four rejoinders (Salve, KKV, RD and PPR) could shed some light on why the petitioners are dissatisfied after the conclusion of the hearing. The section on K.K.Venugopal could have been longer, but unfortunately I found my notes on his argument sketchy and inadequate. I hope to return to his submission at length later.
1.Nobody said on our side that Article 15(4) is an exception. This debate is the most irrelevant.
2. Strict scrutiny is called for if Article 15(1) applies.
3. There is an inherent tension between social enginnering and votebank politics. Power is given for social engineering and not for collateral purpose. That is why the Court has to carefully scrutinize. Judicial review was created for this. Compelling state interest would apply if you are treading on dangerous ground. That is why strict scrutiny test is required; it is not alien. (Justice Pasayat said we apply a test of our own, which may be akin to strict scrutiny test) Harish Salve said: We have never been insular; we have enriched ourselves. We rejected some, eminent domain for example.
Justice Pasayat: American decisions can be considered as articles written by some eminent persons. They shed some light, but have no precedent value.
Justice Thakker: Like we say dissenting judgments also have some value.
4. Harish Salve: Supreme Court judgment in M.Nagaraj case is not obiter (except the part relating to creamy layer). I strongly resent the remarks made by Ram Jethmalani calling some of us on this side as creamy layer.
Justice Pasayat: Ram Jethmalani was referring to creamy layer among lawyers in general. (laughter)
Harish Salve: We take pride in rising above these social barriers while discussing these issues. Such comments from a senior colleague in the bar are hurtful.
5. If the State has quantifiable data, then it can make reservations.
6. Identified class minus creamy layer is equivalent to cohesive class. Social engineering, therefore, must go on even if it creates ripples in society. Harmony and good governance are part of rule of law. This impugned law smacks of politics, not social engineering.
7. Article 15(5) purports to overwrite Article 19(1)(g). The Act also overlooks Article 26 (a) (establish and maintain institutions for religious and charitable purposes). According to T.M.A.Pai decision, charitable purposes include education. Articles 26a –19-30 constitute one composite scheme. Nagaraj principle of interpretation must be applied. You are disturbing the delicate balance between Article 26a and A.30. T.M.A.Pai judgment deals with A.19(1)(g) and A.26.
8. Article 29(2) guarantees to all equality, where public funding is involved. Every student has a right under this Article. Both Venkataramana and Champakam were delivered on the same day. (also by the same Bench; Salve perhaps means here that the same Bench could not have delivered two verdicts with different import on the same day).
9. After strict scrutiny was brought in by Nagaraj, the law must move forward.
10. Article 15(5) is an unqualified way of saying Inamdar was wrong.
K.K.VENUGOPAL:1. Mr.Parasaran says Article 15(5) must be read in addition to A.15(4). But if A.15(4) permits reservation in aided minority institutions, the impugned Act says no to it, because A.15(5) says it cannot.
2. If A.15(4) operates in a parallel position as suggested by Mr.Parasaran, then it will create confusion.