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.
Harish Salve:
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.
Arbitrary hiking of Creamy Layer income limit by the government to bypass Supreme Court Ruling on reservation for OBCs
We do welcome the judgment given by the SC in favor of the 27% reservation for
the Backward Classes. The SC has done a commendable job by excluding the Creamy Layer from the ambit of reservation. The politicians however are opposing it. It clearly shows that they are not actually interested in the welfare of the really backward people in the nation.
1. There are 57 crore OBC in the country (52% of 110 crore population). The number of seats in the educational institutions in centrally administered institutes may be around 40000. Of the say 10000 seats reserved for the OBC candidates almost all of this is going to be cornered by the creamy layer among OBC candidates.. The real OBC will never get these benefits if creamy layer is included.
2. The Government however has devised a novel way to bypass this Supreme Court ruling to exclude Creamy Layer. It is arbitrarily planning to hike the threshold income limit from the current Rs.2.5 lakhs. It is a highly malafide intention on the part of the government to keep the real and deserving OBCs out of reservation benefits. Anyone will find it difficult to understand from where the figure of Rs.2.5 lakhs was arrived in the first instance.
3. The logical and appropriate figure for Creamy Layer income limit should be the income tax threshold limit of Rs.1.2 lakhs (now hiked to Rs.1.5 lakhs from financial year 2008-09). The current population of India is 110 crores. Currently there are 3.2 crore people coming under the income tax bracket (income of above Rs. 1.2 lakh) . Assuming that 50% of them belong to the OBC makes 1.6 crore OBC tax assesses among the total OBC population of 55 crore. This is the elite 2.8% of the OBC. Those OBC whose income falls under income tax assessment limit must be deemed to belong to the Creamy Layer.
This tax paying population is definitely not socially backward and less likely to be educationally backward. It is a matter of great pride in present day to be an income tax assesse/payer. Income tax assesses are held with great respect in society today.
3. It is our sincere request that Supreme Court must intervene immediately and protect the interests of the really down trodden OBCs in India. This can be done by fixing the creamy layer income limit to that of income tax assessment threshold limit.
4. Government should not be allowed to tamper with Creamy Layer income limit. Tampering it will mean great injustice to the 97.2% of the Backward Caste people in the country.
5. The argument of the government that most of the government employees will fall under this income bracket cannot be accepted as they are no longer are socially backward. The really deserving OBC are the crores of landless laborers, petty traders and unorganized sector workers.