The recent SC Order refusing to vacate the stay was an interesting order. I can certainly expect a strong political reaction. But I can also see an assertive judiciary. May be we are back to the property rights days. We can certainly expect exciting moments ahead. Reminded of an old Chinese curse – May you live in interesting times!One might perceive the Supreme Court, as being anti-OBC quota, but that would miss the deeper issue over here. I think the key assumption that is being contested over here is – whether caste is a proxy for backwardness. The government says yes. And the Supreme Court is not inclined to believe that answer, and rightly so, because the data on which reliance is being placed for that answer are state OBC lists which are as old as 40 years for many states. I agree with Pratab Bhanu Mehta – we should use this SC intervention to rethink about desirability of caste-based reservation and whether these policies are being targeted to the right audience. But increasingly, the debate is being now being focussed on technical legal issues which have acquired significance in light of the SC order. In this post, I deal with two fundamental misconceptions that have played a key role in this debate. (There is some unavoidable repetition from an earlier post of mine in support of the SC order)Misconception no 1:
The Recent Supreme Court ruling is inconsistent with its prior Nine Judge Bench ruling in Indra Sawhney in 1992A good section of the political class and the media have strongly asserted the charge of inconsistency against the current Supreme Court ruling. They assert that Supreme Court in Indra Sawhney has already approved reservation for OBC based on data and the Court cannot question its prior ruling now for lack of data. Mr. Venkatesan in his recent post suggests that Parliament in response to the recent set back should define “OBC” to mean “OBC as approved by the Supreme Court in Indra Sawhney”This represents a gross misunderstanding of the Supreme Court judgment. The SC in Indra Sawhney did approve the OBC reservation in state employment based on state OBC lists (and not on the basis of the Mandal Commission Report), but that observation does not justify reservation OBC reservation in educational institutions 15 years down the line. If that was so, we can have OBC reservation in perpetuity based on a 1992 ruling upholding reservation based on state lists of OBC (which themselves go back several decades)It is for this reason the Supreme Court in Indra Sawhney said that there should be a periodic revision to the list of OBC’s. (Para 847 in 1992 Supp (3) SCC 217 per Jeeavn Reddy) The Supreme Court said that backwardness being a relative term must be judged by reference to the entire population (para 795) and a “survey must cover the entire populace.” (See Conclusion 3(b) in Para 859 and 785) The Court is not saying that the government must do a house to house survey, but the government must do a sample survey which gives a sense as to how each section of the society is placed in comparison to the other. I would strongly recommend everyone to have a look at Para 857 of Indra Sawhney where Jeevan Reddy outlines various state lists. It shows how old the state lists are. In Bihar, the last survey was done in 1971, in Gujarat it is 1976, in Kerala- 1967, in Maharastra-1964. So in essence a class which has been identified as backward in 1960’s is still getting the benefit even in 2007. This is a complete mockery of the Supreme Court judgment in Indra Sawhney. In fact the government has only been adding to this list. There have been more additions than deletions.The government knew that it has to conduct such a survey in 1992 when the Indra Sawhney ruling came out. Did it conduct a survey in 1992? It did not. The government had an opportunity to conduct such a survey along with the general census in 2001, but it failed to exercise that valuable option. Did the government do a survey in 2003 which was 10 ten years after the Indra Sawhney? It did not. But suddenly in 2007 the government discovers that it has to give reservation for OBC’s. It is difficult not to see a political motivation for this exercise. In fact the National Commission for Backward Class Commission has been complaining that the government has not been providing infrastructure to conduct a survey. The government relies on the recommendation from the National Commission of Backward Classes in 2003 which is to the effect that the government need not conduct a fresh survey since reservation for OBC’s is only ten years old. That recommendation is not even worth the paper on which it is written on. In Indra Sawhney, the Supreme Court said that the government in conducting the survey, the government must consult the Commission. (Para 847) It doesn’t mean that government can escape its obligation to conduct by relying on an ill-conceived recommendation of the Backward Classes Commission. And in any case, the recommendation of the Backward Class Commission is not a defense for non-compliance of constitutional obligations. The Court has struck down the Backward Class recommendations many a time. Just two days ago, the Supreme Court rejected the recommendation of the Kerala Backward Classes recommendation on creamy layer. And in 2005, a five judge bench of the AP High Court struck down a unanimously passed state enactment giving 5% Muslim quota on the ground that it was based on ill-conceived and inadequate recommendations of the State Backward Classes Commission. Misconception no 2:
The Supreme Court in Indra Sawhney Accepted the Mandal Commission recommendations and therefore the government is entitled to place reliance on themThis is a bigger misconception in the entire OBC debate. Even those who are against the OBC quota assume that the Supreme Court has approved the Mandal Commission recommendations. THE SUPREME COURT DID NOT APPROVE THE MANDAL COMMISSION RECOMMENDATIONS. In fact, if one strictly follows the technical rules of precedent, the Supreme Court actually rejected the Mandal Commission recommendations. This confusion arises because of multiple judgments in Indra Sawhney. Indra Sawhney was a bench of nine judges and out of these nine judges six opinions came out. The opinion that is most often referred to is of Justice Jeevan Reddy who wrote on behalf of Justices Venkatachelliah, Kania, Ahmadi and himself. Justices Sawant, Pandian, Kuldip Singh, Thommen and Sahai delivered individual opinions. Ordinarily when there is large bench, it is conventional to have one opinion that represents the majority for the sake of clarity followed by some concurring or dissenting opinions. (Keshavananda Bharati being a distinguished exception to this convention) Indra Sawhney is also one such exception. In such a scenario, the ratio has to be ascertained by seeing the opinion of each judge on each issue and then add the numbers. It is a settled rule of precedent that an opinion can be in the majority on issue and be in a minority on another issue. In Indra Sawhney, Justice Jeevan Reddy upheld the controversial Office Memorandum (OM) which provided for 27% reservation in state employment. Two judges – Pandian and Sawant also upheld the OM. Three judges – Singh, Sahai and Thommen – declared the OM as unconstitutional. But what is binding is not the final conclusion, but the reasoning on which it was based. When it came to the issue of Mandal Commission recommendations, the Court was sharply split even among the majority. Their opinion can be outlined below· Jeevan Reddy (on behalf of four judges) upheld the OM on behalf of the State OBC lists and not on the basis of the Mandal recommendations. Although he did approve the criterion on which Mandal Commission went about identifying backward classes (predominantly caste –Para 854), he expressly made a decision not to get into the adequacy or inadequacy of the Mandal recommendations. In response to the arguments criticizing and defending the Mandal Commission Report, he observed
“it is unnecessary for us to express any opinion on the correctness or adequacy of the exercise done by the Mandal Commission. (If and when the Government of India notifies any caste/ community/group/class from out of the Mandal list, which caste etc. is not included in the appropriate State list, would the said question fall for consideration. It is then that it would be necessary to deal with the criticism against the Mandal Commission). For the same reason, it is unnecessary to refer or deal with the arguments of the counsel for Union of India and the Respondents in justification of the Mandal Commission Report. (Para 856 in SCC)”
So central was this determination to his opinion, he even put this in his list of conclusions at the end of the judgment(14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. (Para 859 in SCC)He justified his conclusion on the ground that OM was not based on the Mandal Commission recommendations since the Government of India has not accepted it. (851) · Justice Pandian was the only judge among the nine judges who expressly approved the Mandal Commission recommendations. (Para 140) · Justice Sawant was ambivalent on the Mandal recommendations. He said that there was nothing wrong with the criterion adopted by the Commission, but – like Jeevan Reddy – refused to get into the merits and instead sought to rely on the State OBC lists. (Para 551)· Justices Kuldip Singh, Sahai and Thommen in each of their opinions vigorously attacked the Mandal Commission Report on the criterion adopted and the methodology. Justice Kuldip Singh was very emphatic in his criticism of the Mandal ReportIt is, thus, obvious that hardly any investigation was done by the Mandal Commission to find out the backward classes for the purposes of Article 16(4). A collection of so-called backward castes by a clerical-act based on drawing-room investigation cannot be the backward classes envisaged under Article 16(4). If the castes enlisted by Mandal are permitted to avail the benefit of job-reservations, thereby depriving half the country’s population of its right under Article 16(1) the result would be nothing but a fraud on the Constitution. (Para 393 (v))So out of nine judges, 5 judges (Jeevan Reddy + Sawant) expressly refused to express any final opinion on the Mandal Commission recommendations and even left the issue open for a future day. So out of the remaining four judges, three of them rejected the recommendations and only one judge expressly approved them. Given this, I find it almost perverse to assert that the Supreme Court approved the Mandal recommendations. (If anything one could actually argue that the Supreme Court rejected Mandal recommendations since three out of four judges rejected the recommendation) What is more disconcerting is the extensive reliance placed by the Central government in its written submissions on the opinion of Justice Pandian in support of its stand. Its not only unfair, but would probably tantamount to misleading the Court. PS: I will deal with the standard and the extent of judicial review in the affirmative action cases in India in the next blog.