Does the government really deserve the harsh rebuke that it got from the Chief Justice of India over its response to the verdict in the professional colleges admission case?
V. VENKATESAN in New Delhi
THE occasion was rich in irony: As Dalit Hindus who had converted to Christianity sought the Supreme Court’s direction to extend the status of Scheduled Castes to them, a sympathetic Bench turned its ire on the government for allegedly challenging a judgment of the court that was widely seen to be anti-Dalit. On August 23, a Bench comprising Chief Justice R.C. Lahoti, Justice G.P. Mathur and Justice P.K. Balasubramanyan heard a public interest petition, filed by the Centre for Public Interest Litigation, challenging the constitutional validity of paragraph 3 in the President’s Order, 1950, which excludes Dalit Christians from being considered members of the Scheduled Castes and deprives them of the benefits of reservation. The Bench found the reluctance of the United Progressive Alliance (UPA) government to respond to the petition promptly wholly inexplicable.
The Congress government under P.V. Narasimha Rao introduced a Bill in the Lok Sabha in 1996 repealing the same paragraph, but the Bill lapsed because of the dissolution of the House. Its successor governments, in the face of stiff opposition from the Bharatiya Janata Party, which feared that such a move would encourage conversion of Dalit Hindus to Christianity, refrained from reviving the Bill.
Today, there is no visible opposition to the measure within the ruling coalition led by the Congress. The Left parties have urged the government to go ahead with it. Yet, the government requested the court to adjourn the case for four months, knowing fully well that Chief Justice Lahoti, who was slated to retire on October 31, would not be present during the next hearing if the court agreed to it. The government’s excuse was that it had referred the matter to the National Commission for Linguistic and Religious Minorities, even though the Commission’s charter does not include decisions on the constitutional issue of the caste of non-Hindus.
The Bench and the government agreed to a brief adjournment of the matter until October 18. But there was an unexpected outburst from Chief Justice Lahoti.
True, Attorney-General Milon K. Banerjee’s inadvertent thanks to the Bench for “not precipitating the matter”, in agreeing to adjourn the matter until October 18, hurt the Bench and provoked the Chief Justice. But the Chief Justice seemed to use the opportunity to express his displeasure over the government’s response to the court’s judgment in the P.A. Inamdar case, which was unusual.
“If the government is so intolerant, it can take steps to close down courts,” the Chief Justice told Banerjee. The Bench further said the government’s “criticism” was uncalled for as the seven-Judge Bench only reiterated the ruling of an 11-member Bench in the T.M.A. Pai Foundation case in 2002, and the court in all the three judgments (T.M.A. Pai Foundation, Islamic Academy in 2003, and now in the P.A. Inamdar case) had suggested enactment of a law for higher education.
The Chief Justice was reportedly visibly annoyed and he accused the government of talking about confrontation. “You must advise your people [the government] to exercise self-restraint. Why are we told time and again by the government that it is not taking a confrontationist attitude? Who is taking a confrontationist attitude? If this is the attitude of the government to go after a judgment without understanding it, then wind up the courts and do whatever you want,” he reportedly said.
The Attorney-General’s plea that the government held the court in high esteem failed to convince the Chief Justice, who asked him to tell his client to give to the courts the respect they deserved.
Was the government as `intolerant’ as the Chief Justice said it was?
Minister of State for Parliamentary Affairs Suresh Pachouri told the Rajya Sabha on August 16: “The government will immediately take steps to fulfil its commitment to reservation in educational institutions. The entire House has expressed its concern over the Supreme Court’s order. The United Progressive Alliance government is committed to reservation for the Scheduled Castes and the Scheduled Tribes. After conducting a complete review and taking it very seriously, the government will take necessary steps in this direction” (The Hindu, August 17).
Human Resources Development Minister Arjun Singh told the Lok Sabha, in response to a calling attention motion on August 17:
“The HRD Ministry had organised a two-day meeting of State Ministers of Higher and Technical Education at Bangalore on January 10-11, 2005. Based on the deliberations in the above consultation, a draft legislation was prepared and was circulated during the last meeting of the Central Advisory Board of Education held in July 14-15, 2005. The draft legislation also addresses the concerns of the Honourable Members of Parliament with regard to the provision for government reservation for SC [Scheduled Castes], ST [Scheduled Tribes] and OBCs [Other Backward Classes].
“Even as we were awaiting the comments from all the State governments, the above judgment of the Hon. Supreme Court has, in a substantial way, affected the proposed scheme in the draft legislation. It is important that we try and understand the implications of the judgment and evolve a national approach to this important issue. This approach must address national, social and constitutional imperatives in a holistic manner. To evolve this national approach, I have convened a meeting of the State Ministers in charge of professional education on August 27, 2005, in New Delhi. We do hope that we will be able to come to a common understanding on this issue. We will also be benefited by today’s discussion and the Hon. Members’ suggestions in this regard.”
He added: “I would like to state very categorically that this government is committed to the policy of reservation, to the policy of the protection of the social, political structure which the Constitution has recognised. The Hon. Supreme Court has delivered a judgment which does, in many ways, impinge upon the social rights. However, I would like the House to bear in mind that this judgment does not come into force till the next academic session. I would also inform the august House that we have drawn up the legislation on the basis of consultation with all the States and this judgment has come at a stage where the implementation of that legislation has been disturbed but our objective will remain the same” (as reported in the Synopsis of Debates).
Later, Arjun Singh told the media on August 19: “Our deliberations at the meeting of State Ministers in charge of professional education on August 27 would not be judgment-centric. Our aim is not to enter into a confrontation with the Supreme Court. Government is committed to the social and political structure provided by the Constitution” (The Hindu, August 20).
Thus, the word “confrontation” was used by a member of the government only once, and that too in response to a question from a journalist, in order to deny that it was at all the aim of the government.
The Prime Minister assured the Parliamentary Forum of Scheduled Castes and Scheduled Tribes on August 18 that the government would engage the services of senior counsel K. Parasaran to address the issue in court. The government, he said, would protect effective equality of opportunity (The Hindu, August 20).
It can be seen from these utterances that the government hardly “criticised” the P.A. Inamdar judgment, let alone express its “intolerance” over it. Nor could these statements be interpreted as showing disrespect to the court.
In the P.A. Inamdar case, the Bench had clearly held that it was for the Central government, or for the State governments, in the absence of a Central law, to come out with a detailed, well-thought-out piece of legislation on the subject. “Such a legislation is long awaited. The earlier the Union of India and the State Governments act, the better it would be,” the Bench said.
That is precisely what the government was trying to do. Even if the law to be enacted by Parliament goes against the law as interpreted by the court in the P.A. Inamdar case, such a law would be open to judicial review “in accordance with the settled parameters for the exercise of such jurisdiction”, as the Bench put it in the P.A. Inamdar case.
Legal experts say that when a law is framed, it must be justified on the basis of Article 15(4) of the Constitution, and the court will have to test the law on that basis. Article 15(4) enables the state to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 15(4) enables the state to reserve seats in unaided educational institutions as well, and not just in state-funded ones.
As per the Supreme Court’s interpretation in the “Mandal Commission” case, it is a substantive fundamental right and a “restatement” of Article 15(1) which prohibits discrimination by the state against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. The Supreme Court has not had an opportunity to test the validity of the state’s reservations in unaided educational institutions under Article 15(4) in the T.M.A. Pai Foundation, Islamic Academy and P.A. Inamdar cases.