Supreme Court on Tuesday fixed May 8 to take up an application moved by the Centre seeking early hearing on the constitutional validity of OBC Reservations in the IITs and IIMs. A two-judge bench advances hearing slated for August, acceding to Govt’s plea to hear matter at the earliest. After a string of judicial jolts over the OBC quota, the UPA government got its face-saver. This face saver comes within a day of the 2 judge bench of Justice Arijit Pasayat and Justice L.S. Panta refusing to vacate the interim stay on 27 per cent reservation for Other Backward Classes in elite educational institutions. The anti-quota petitioners questioned the propriety of bypassing the two-judge bench, which had earlier fixed the hearing for the third week of August but the Chief Justice K.G. Balakrishnan rejected the argument
saying: “It is my privilege (to entertain an application for early hearing).”
Ninad on Lex has the legal perspective on this development. Offstumped examines the political ramifications.
The most telling political reaction on the OBC Reservation issue with hints of what lies ahead comes from AICC general secretary Digvijay Singh who while expressing disappointment over what he called “the setback for the social agenda of the centre” and said such court rulings could make the socially deprived sections ponder over the courts’ attitude towards socially important legislation. Quoting Digvijay Singh as reported by the Times News Network
“It (the ruling) will hurt the socially deprived sections more than the Congress. It is very unfortunate. I am not attributing bias to the courts but then such rulings will once again make the people of India, especially the socially deprived sections, ponder why courts always go against legislation meant for underprivileged.
“People are observing why legal decisions on social issues are going against”
The Centre’s reaching out to the Chief Justice and the subsequent advancement of the hearing must be seen in this perspective. For long the Indian Judiciary has maintained its above politics status and more often than not in recent times has come out strongly in favor of the people against the Government even if it mean appropriating to itself executive actions where the Government of the day was found to be wanting. But what the Courts have avoided was providing constitutional cover to rank political issues after the costly missteps during the Indira Gandhi era in the run upto emergency.
Two deeply dividing political issues have confronted the courts to date. The first is the Ram Janmabhoomi/Babri Masjid issue which thankfully did not see the politicisation of the courts with both sides quite intent to keep the matter buried for another generation to deal with. The second is the OBC Reservations issue which unlike the Babri Masjid issue is substantially different with the overwhelming political consensus from mainstream national parties like the BJP and regional political parties like the DMK in favor of it. The first round of OBC Reservations much thanks to the Mandal Commission and V.P. Singh passed the Constitutional Muster to become settled law of the land for over a decade now, however the second round has run into stiff constitutional resistance from the Judiciary paving the way for the current impasse.
The Reservations debate in a way is dangerously close to becoming like the Right to Abortion debate in the United States where the constitutionality of the Right to Abortion depends purely on which side of the political spectrum you belong to and in its perverse extreme application it has become a Litmus Test for Judicial Nominations.
So when a Digvijay Singh starts ponder loudly on why legal decisions are going against the Government’s Social Agenda, he is giving us broad hints on an inevitable Social Justice Litmus Test for the Judiciary.
So what would such a Social Justice Litmus Test comprise of, Offstumped has some questions.
Social Justice Litmus Test 1 – Do you believe the Constitution must provide safeguards for the Social Justice Agenda of the Government ?
Social Justice Litmus Test 2 – Do you believe such safeguards must provide for schedules where laws can be parked to be kept out of Judicial Review ?
Social Justice Litmus Test 3 – Do you believe it is Constitutional for the Government in the interest of its Social Justice Agenda to act affirmatively in favor of specific religious and caste groups irrespective of their socio-econoomic status ?
Social Justice Litmus Test 4 – Do you believe it is Constitutional for the Government in the interest of its Political Survival to exempt Members of the Legislature from being appointed to Offices of Profit ?
Social Justice Litmus Test 5 – Do you believe it is Constitutional for the Government in the interest of both its political survival and social justice agenda for Parliament to arrogate to itself absolute powers overruling the Judiciary whenever it deems it fit ?
There you have it folks the inevitable politicisation of the Judiciary coming soon to a court near you with Judges who pass the Social Justice Litmus Tests.
Offstumped Bottomline: Heralding the coming of age of Indian Democracy is the inevitable politicisation of the Judiciary on deeply political issues. Unlike the Abortion issue in the United States that has equally strong political sponsors on either side, the Reservations issue in India has no mainstream political challenge. Hence the importance of the Political War on Social Justice without which we may as well get used to many more Litmus Tests of Entitlement.
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It’s not new for the Congress party to try to bludgeon the judiciary. It’s happened before, when another Mrs Gandhi was running the country.
It will be a sad day if the Courts are subjected to the litmus tests you have mentioned.
Litmus test for the Courts is to deliver justice and to be seen to be delivering justice.
Though whenever justice is dispensed and the party who looses the case feels justice is not what has been dispensed but would have been what they believe it should have been.This far its understandable.
The problem begins when the so called ‘eminent’ personalities,likes of Arundahatis (In Narmada SC verdict),and media start ‘imputing’ motives.It is a dangerous trend.
This UPA (Un Provoked Assassins) of all shame and probity,did exactly the same in case of Delhi Demolition Case.Here too with half baked arguments and utterly callous attitude towards the problem,pitched the Courts against the general public.Political class is exploiting the ‘emotive’ issues and setting a ‘Dangerous trend’ of pitching the judiciary against the public.Digvijay’s statement can be seen in this light only.
PI.
Want to add one more thing.
personally I feel that this latest reporting trend of mentioning the Judges name is improper.Instead of reporting their names “The Honorable Judges of SC bench” should be used.
When the current CJI was appointed the Media took upon itself as promoting him as the first DALIT CJI.My humble opinion is that it puts ‘more’ pressure on the Honorable Judges.Unnecessary and avoidable it further erodes the ‘sanctity’ of the courts.
PI.
Nitin – thanks for the link in
PI – Agree with you on government’s executive delinquency forcing the court to take unpopular decisions. Disagree with you on how judges are reported. Time India grew up and recognized that Judges are fallible and nothing extraordinarily honorable about them. Would prefer the American System where despite the politicization the process is transparent and you know what you get instead of the Indian System with its pretense of above politics. Nobody is above politics, that is a myth, you are either too timid to reveal your politics or too clever to conceal it.
Inevitable politicization of the judiciary? Where do you get that?
The courts have stated the order for lack of sufficient proof-namely an obsolete 1931 census.Agreed,that the government,backed by Mrs G will put political pressure of the bench,but the government cant reverse its verdict,without losing face;in as,giving the junta sufficient reason to do so.In a way its pretty awkward for the UPA government too-not having the resolution passed,would lose them the leftist support and that of the backward poor.Thats bad considering it has already pissed the middle class.
Aditya – Time will tell, not sure which Junta you refer to, if by Junta you mean the urban english speaking middle class majority of who never show up to vote and get all exercised on the streets of delhi, that Junta is barely relevant in the larger political scheme of things, at best a voluble nuisance nothing more.
I consider it to be a sticky wicket. When you live in an era of Lalu’s, Mulayam’s, Mayawati’s, MK’s who have taken the tragedy of the age-old caste divisions, and used them for political benefit by turning them around, you have a populace of those caste groups who have blind faith in entitlement, and will not listen to arguments about merit, or that institutions like the EC, IIM/IIT’s/etc., and the Supreme Court can exist in a caste-free world and be completely objective.
Aside from the BJP, every other party (including its allies) views anti-Constitutional legislation as a means to gain votes and is willing to step all over the Supreme Court to get their way. Thankfully, the BJP, as one of the 2 major national parties, has been supportive of election reforms, Supreme Court decisions and hadn’t touched reservations…but the Pandora’s box is open. BJP can not be seen as Brahmin/elitist, so at best, they can offer moral support to anti-Reservationists and keep a low profile…the beauty of it is, the Supreme Court, even with one major national party rocking in the center, and every other party clearly in the pro-Reservation camp, they can still make the Constitutional decision. We can only hope that pressure does not become a factor, as it never should be in judicial decision-making.
I have always appreciated the offstumped articles. But i tend to disagree with this one. The courts in India have been biased on many occasions previously too. But the the apex court (supreme court) has stood the test of time, They have survived the stupid congress government, they have seen VP Singh and even MK flouting the 50% ceiling on reservation. But they are still unbiased in this issue. The point is if there people to fight the govt then the supreme court will help you if you have a point. It is the very same members of the current SC including the current chief justice who struck down the 9th schedule, knowing very well the implications of it. They knew that TN govt’s reservation policy is under question if they strike it down, but guys the law is supreme and they have upheld it always. I liked Janpar’s thought about BJP on the reservation issue. They dont bring it up, but if someone else does, they cant help it. But stay cool, the same bench will hear it on May 8th and bombard digvijay singh until he loses the hair he has even on the sides.
Murali – fair enough but the argument is not about bias in the SC but is about the likelihood of the politicians changing the rules on how judges get appointed and the inevitable politicization that would bring.