Dr. Dhavan has sent the following in response to Venkatesan’s critique. I have his permission to post it on the blog:
“Wrong But Delightful: A Response to V. Venkatesan
– By Rajeev Dhavan
1. What a wonderfully provocative review!
2. The main debate is on whether the Parliamentary debates were fulfilling (see Book pp. 34-5). Clearly they were not.
3. It is the OBC bench that was utterly confused about whether the creamy layer applied to SCs and STs (see Book pp. 227-233) where the contradiction is shown.
4. The important aspect of Nagraj and Coelho is the caveat that, 50% reservations, creamy layer and compelling necessity are essential in respect of future actions even validity of the constitutional amendments is upheld (see Book pp. 238).
5. Alas, you have reviewed only the epilogue (see Book pp.199 ff) and my supposed reversal of roles, but not the book.
6. I love your writing – right or wrong!!”
Dear Dr.Dhavan,
Thanks for your encouraging and constructive response to my book review.
On points 2,and 3, I don’t think we disagree at all. But we seem to disagree on their import. That Parliament debate was cursory on the quota issue, how can there be a dispute? Therefore, I was interested in knowing how you link this lack of debate with the lack of merits of the Acts challenged in Nagaraj, but I felt that this linkage was not clear enough in the book.
How can we infer positively from the confusion of the OBC Bench that it wanted to apply creamy layer criteria to SC and ST? (Agreed that there was confusion)
On point 4, if prospective overruling was the intention of the Nagaraj Bench, why it was not clearly spelt out and explained in the judgment, rather than leave it to inferences and interpretations? If prospective overruling is taken to its logical conclusion, then it would mean that the Amendments are upheld, but it cannot be given effect to without subjecting them to 50% rule, creamy layer, and compelling necessity – which will be contradictory and absurd. You may remember that one of the immediate responses to Nagaraj was that if the Bench wanted to apply creamy layer to SC/ST, then why it did not strike down the laws?
If, however, prospective overruling is taken to mean only future laws on quota should be subjected to this triple test, this will again lead to further inconsistencies. Reconciling this with Indra Sawhney will be a challenge. It will also mean having two sets of quota laws/notifications, that is pre-Nagaraj and Post-Nagaraj and confine this triple test to Post-Nagaraj notifications/laws.
If this is the correct reading of Nagaraj, then I suppose, it is not so clear from the judgment. May be I am missing something, because of my inadequate understanding of the issue; I will be grateful if you can further explain this aspect.
I was intrigued – like any reader would be – about your reversal of roles, and sought to know whether the book offered a convincing explanation for this.
Whether I focussed more on epilogue rather than the book as such – I think it is a question of perception. On the whole, I would think the review was balanced.
I dont really think Venkatesan’s focus on the epilogue “is a question of perception” as he puts it. It is a fact. The book review should have been more responsible than to concentrate on putting across the reviewer’s personal opinions about the author and his own take on the quota debate.
If I wanted to consider buying this book, Venkatesan’s review is far from helpful.
Dr. Dhavan has sent the following comments in response to Venkatesan's post. I have his permission to post it:
1. The review of an epilogue can hardly be termed as a balanced review of the rest of the book, which is ignored.
2. The book is about how parliament debated constitutional amendments in a patently irresponsible way.
3. Mr. Venkatesan has either not read the OBC reservation case on subjects such as the creamy layer, Nagraj and Coelho or refuses to understand them because of an ideological commitment which is consequentialist in nature without examining the nuances of equality.
4. The review is patently unfair. Whether it matters is another question.
5. This book is part of a long line of books and articles where I have considered how parliament discharges its constitutional and legislative functions [See R. Dhavan, The Amendment Conspiracy or Revolution (Allahabad: A.H. Wheeler & Co., 1978); (R. Dhavan, President’s Rule in the States (Bombay: N.M. Tripathi Ltd., 1979); R. Dhavan, Contempt of Court and the Press (Bombay: N.M. Tripathi Ltd., 1982) at pp. 60-88; R. Dhavan, “Whose Interest? Independent India’s Patent Law and Policy”, 32 JILI 429 (1990); R. Dhavan, “Mining Policy in India: Patronage or Control?”, 34 JILI 218 (1990)]. I have also written an exhaustive account of how the Race Relations Legislation went through the British Parliament. I would have thought that Parliamentary discharge of its function is a discrete subject, which is what my book is about.
Rajeev Dhavan
Dear Dr.Dhavan,
I do see your point that I must have reviewed the book as one on how Parliament discharged its function rather than on the subject of reservations. I assume that much of the confusion on whether I focus on the epilogue or on the book stems from this.
But what is an epilogue? It is a closing section providing further comment, interpretation, or information, related to the main theme of the book. One will certainly agree that Parliamentary discharge of its function is a discrete subject, and that is what you aimed at. In fact you made it very clear that you were not writing a book on reservations.
Therefore, your epilogue on the Thakur case outcome was quite unrelated to the main focus of the book, insofar as it digressed from the Parliamentary discharge of its functions. However, it was related insofar as the subject of both was reservations.
Here, I admit and as correctly pointed out by you, I focussed on reservations, and ignored the question of Parliamentary discharge of its functions, which you correctly say is the main concern of your book.
Now, should I not have focussed on the Parliamentary discharge of its function? In fact, I thought you were making a serious point when you compared the Parliament debate of 1950s, and 1960s and now, to suggest that Parliament today is irresponsible.
But to either agree or disagree with this stand, I would have preferred to have a discussion on what constitutes Parliamentary responsiveness, what is the criteria to measure such responsiveness, rather than simply go by the speeches made in the House on a particular subject. Unfortunately, I could not find such a discussion in the book. Therefore, I considered this gap as a pointer to further research and exploration. I agree that I could have mentioned this in the review, but I did not consciously avoid it.
In retrospect, I agree that your epilogue has probably and unconsciously influenced the way I looked at and read the rest of the book. The point is I did not ignore the rest of the book, but read it from the perspective of the epilogue. The point which is missed here is that it is not deliberate or intentional, but it so happened because of the way the book was structured and written.
On point 3, since your statement is open-ended, I assume that I can persuade you to choose your first one, that is, my knowledge of case-law and the nuances of equality debate is inadequate. It is for that reason, I hoped you can elaborate what I am missing (not deliberately). I hope you can do that and you are most welcome to do that even now.
Dr.Dhavan, we on this blog, have been successful so far in engaging in academic discussion, without attributing motives or labels to each other. I do hope we can keep up this tradition and learn from each other.
Let me add I hugely respect your scholarship and contribution to understanding of law and polity, and see many of your books and writings as a source of inspiration.