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

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!!!

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  • “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

    Very true.The political class is
    whipping up sentiments and is provoking OBCs.One has to read the
    comments made by Chief Minister
    of Tamil Nadu to understand how
    this provocation is justified.
    There are indications that parties want parliament to do something so
    that the Act is implemented. Unfortunately the intellectuals
    who protested against Murali Manohar Joshi are silent now.

  • Dear Vikram, Thanks for throwing light on Art.76(3). I have a question for Mr.Mehta. He says: 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!!!
    The creamy layer order was immediately implemented within six months of Indra Sawhney judgment. The Experts Commission gave its report in 15 days, and the criteria was adopted, it was only after that the Mandal Notification came to be implemented. Now the issue is since Indra Sawhney made creamy layer mandatory for 16(4), and not 15(4)(which is similar to the present 15(5)), should not the Govt.’s weighty reasons for not excluding creamy layer for 15(5) be heard properly, before staying the Act. Now there can be suggestions like that of the CPI(M) for instance, which says let the non-creamy layer get the 27 per cent benefit first, and if the seats remain unfilled, then the creamy layer may step in. There is in fact justification in the view that the creamy layer criteria for 16(4) ought to be different from that of 15(5), because of peculiar differences between quota for jobs and quota for educational seats. All these may have to be considered before making creamy layer mandatory for 15(5). The court did not consider all these, before staying it.

  • Dear Venkatesan,

    Thanks for your characteristically careful response to
    a glib comment. But didn’t the Court itself pass
    stricutres against the Kerala government for non
    implementation of the creamy layer exclusion in 2000,
    and again against a number of states in 2003 (Saurabh
    Chaudhari v Union of India?)?

    I think the issue is whether you see the glass half
    empty or half full. The government says, what applies
    to jobs does not necessarily apply to admissions. This
    can be a reasonable argument. But it needs
    JUSTIFICATION, and the Court is saying that the
    justification provided so far appears inadequate.It
    does not answer the basic question: Why should this
    particular criteria be used to identify benefeciaries?
    Does using this criteria violate some principle of
    equal treatment (giving a “rich” OBC a special
    benefit, over a poor upper caste?) The Court has not
    said that there cannot be an answer to this question,
    all it is saying is that the government has not
    provided it so far. Hence the STAY. And it is so far
    only a STAY. Why construe it as the final ruling?

    The real difficulty is that neither the Court, nor
    public discussion at large has left any room for
    asking nuanced questions about a)What is the objective
    of reservations b)Who should it target? c)What
    alternatives are there. Charitably, the Court could
    now make space for thinking through these questions.

  • Indra Sawhney II case dealt with this issue and Supreme Court observed how some state governments
    tried to make a mockery of exclusion of creamy layer by fixing the income celing very high.
    Or take the case of Kerala.One has to read the judgments on this issue to understand how the political class tried to ensure that creamy layer principle exists only in paper. About the Tamil Nadu
    the less said the better it is.
    Mr.Venkatesan, I have a question
    for you in this regard. Why is
    that one hardly find references
    to the recommendations of Sattanathan Commission or Ambasankar Commission on some castes benefitting more from reservations or excluding some
    groups from reservation, in articles in Frontline on reservations in Tamilnadu.I am sure you know that The CPI(M) in Tamilnadu maintains a stoic silence on creamy layer issue while in New Delhi CPI(M) atleast pays lip service to that.

  • I think CJI set a wrong precedence by allowing an early hearing, question marks can be raised against his attitude and sympathies as well. Why we dont ask arjun Singh a simple question ” where he was in 93 when he was HRD minister, why he didnt think of quotas then ?” . The validity of quota act needs to be verified and if it takes one -two years so be it, afterall it will be there forever afterwards.