K. Balagopal, in his last article in the EPW castigates the Supreme Court’s jurisprudence on reservations. He frames the problem as one of judicial indiscipline influenced by “ideology”.
He argues that the Indira Sahwney decision had settled most questions concerning the constitutionality of reservations particularly for OBC’s but certain judges of the Supreme Court have persisted in reopening questions decided by a 9 judge bench.
The main offendor is the the two judge bench reference of Justice Arijit Pasayat and Lokeshwar Singh Panta to the constitutional bench in the Ashok Kumar Thakur case. The reference raised 31 questions “almost all of which were answered in the Mandal Commission case and indeed even much before that”. The only new question in Ashok Kumar Thakur was whether Parliament by law could direct private educational institutions to reserve seats for OBC’s. A question he notes was answered by only one of the five judges. Instead of returning the reference on the ground that there was no challenge from private educational institutions, he argues that the court proceeded to “read the Mandal Commission judgment tendentiously, genuflecting with due respect, but glossing it in a manner that leaves the door open for a reversal in good time”.
For instance, he discusses the changed interpretaion of the creamy layer definition.
” Thus, the removal of creamy layer is no longer a matter of purported justice within the community as between the more backward and the less backward amongst it, as it was in the Mandal Commission case, but a necessary prerequisite for the caste to at all be a class, and a fortiori a backward class. This is a very significant conceptual revision, effected silently by a majority of this five judge bench in a reference that was unnecessary in the first place.”
Balagopal also protests the insertion of economic criteria as a necessary definition of backwardness from only one of many criteria. He then proceeds to take issue with the various ancillary comments the judges made on questions that had not even been raised in the reference.
His framing of the problem as one of ideology and of “judicial indiscipline” is in some ways a novel one. Several commentators in this group have been noting how the Supreme Court on occasion fails to follow its own precedent, and this might be an useful moment to revisit the debate.
On the question of ideology I also wanted to flag Anuj Bhuwania’s posting on caste and the higher judiciary.