Today, Dr.Rajeev Dhavan, counsel for one of the petitioners in the Mandal II case, argued before the Constitution Bench. I am summing up his views here:
1.He began saying that there have been three major disagreements between the Executive and the Judiciary. During the Nehru era, it was the question of land reforms and compensation. Then arose the issue of Parliament’s sovereignty, which was resolved in the Keshavanand Bharati case. The third disagreement is on what equality means.
2.Affirmative Action (AA) comprises a mandatory dispensation as well as a discretionary dispensation. The reservation in Parliament and State assemblies for SC, ST and Anglo Indians (for Parliament) is the mandatory dispensation, whereas quota is a discretionary dispensation. While SCs and STs are under Super Classification, OBCs are not so classified. What was intended to be discretionary in Constitutional dispensation has upstaged everything else.
3. AA is a response to group rights. Quota aims at equality of results in relation to individuals, whereas AA aims at equality of capacities. Emphasis on quota leads to neglect of capacities, and the vast population is seen as a liability rather than a huge resource.
4. Where a legislature depends on facts to enact a law, judiciary can lift the veil, to see whether those facts are correct.
5. Reservation does not necessarily mean quota (He did not elaborate this point)
6, There are three differences between Art.16(4) and 15(4): 15(4)(and cl.5) does not use the expression reservation, whereas 16(4) uses reservation. Criteria in 16(4) is wider than that is found under 15(4). 15(4) wider than 16(4) in terms of its benefits; that several schemes of positive action can be implemented under 15(4) in addition to reservations. Therefore, the width of 15(4) must be borne in mind.
7. AA or quota is not a fundamental right. Construction of AA in Art.15 and 16 requires an elaborate review by the Government based on a strict scrutiny of Constitutional provisions in choosing the option on the basis of compelling necessity. As non-obstante clauses, Art.15 (4) and 16 (4) can’t make inroads into Art.14.
8. Quotas are the last option, and not a convenient short cut to lure vote banks.
9.Champakam Dorairajan is still a good law, not yet overruled. Article 29(2) and Art.15 must be read together unless they are specifically excluded. While Art.15(4) excludes Art.29(2), the impugned Article 15(5) does not exclude Art.29(2). At this point, Justice Pasayat told Rajeev Dhavan that Champakam decision meant that Article 29(2) must be read subject to Art.15(4).
10. There is total absence of criteria to identify the backward classes. While there have been periodic revisions of SC/ST lists, no similar revision took place for OBC lists. The court should lift the veil to see where is the 27 per cent OBCs.
11. Inamdar has been brazenly overruled by the Government.