[Reader-list] A critique of the SC stay

[Shivam Vij]

SC's Stay of Mandal II: A Rejoinder

By V Venkatesan
http://lawandotherthings.blogspot.com/2007/04/scs-stay-of-mandal-ii-rejoinder.html

1. Did the Court decide the case on merits?

Ans: My interest in the interim order is on how elaborate the Bench
has been on the question of stay. It is pointless to "elaborately
consider the contentions of the petitioners and the government" and
then conclude in paragraph 18 that "the issues need deeper
consideration in the background of their legal and social importance."

Now let us consider how the Court considered the stay issue. Their
only concern is this: "What may have been relevant in 1931 Census may
have some relevance but cannot be the determinative factor." The
Central Government's counter-affidavit shows how flawed this concern
is. The 1931 Census was not the basis for identification of OBC
castes. The GOI's OBC lists include castes which are common to both
the Mandal and the States' lists. In other words, Mandal list alone is
not sufficient. In effect, it is the states' lists which have been
accepted by the Central Govt. The states' lists have undergone the
tests of judicial scrutiny in many cases, and have not been struck
down for want of uptodate data.

The court prima facie assumes that inclusion of castes in the OBC list
has been mechanical, and done without adequate relevant data. This is
a wrong assumption. The inclusion of castes has been going on for many
years in various States, on a variety of criteria. The Mandal
Commission followed its own criteria, (not on the basis of 1931
census) including representation from the claimant castes, field
visits by the Members, and the States' lists. Now, it is possible that
some castes in the lists ceased to be socially and educationally
backward, and there could have been mistakes and imperfections while
including certain castes, as it could happen in a gigantic exercise
like this. Even if there is a caste census, it could happen.

That is why the National Commission for Backward Classes Act, 1993 set
up in pursuance of the Indra Sawhney judgment, provides a mechanism to
rectify such aberrations. Anyone aggrieved with these lists, could
approach the Commission stating the facts, and the nature of the
complaint, with documentary evidence, if any for inclusion or
exclusion. The Commission's advice in this regard is binding on the
Government. For this, one need not wait for 10 years. The Act also
envisages once in a 10-years revision of the lists. This was complied
with in 2003, when the Commission advised the Government after a
revision, that there was no scope for excluding any classes from the
list as the reservation was only introduced very recently after the
implementation in services in 1993. In the case of educational
institutions, it had not even started. So the question of revision did
not arise. Strangely, the Court did not at all fault the petitioners
for not using this grievance redressal mechanism under the NCBC Act.
All these are to be found in the counter-argument. But for strange
reasons, the Court did not address these issues at all in its
judgment. Is it a case of selective consideration "on merits"?

I am unable to convince myself that it is a case of the Court hearing
it on merits. Even if it had heard it on merits, I am unable to
understand why the questions of balance of convenience and presumption
of constitutionality are irrelevant. "Elaborate" order, ipso facto,
cannot suggest that it was heard on merits. Did the Court seriously go
into the merits or non-merits of stay? Instead, it raised extraneous
issues like data collection and creamy layer, (on which it was not
convinced itself, as it admitted there is need for detailed hearing),
and on the basis of their superficial understanding (not even is there
any prima facie finding), it proceeds to grant a partial stay.


2. Is there data to back up the OBC reservation?

Ans: Instead of asking the Government this question, the Court must
have asked the petitioners, to show that specific inclusions of castes
in the OBC list were without any data, and this was not seriously
examined by the NCBC, when they complained to it. The petitioners are
apparently lazy to carry out such an exercise themselves, and
therefore, suggested a fresh survey. The Court cites ASG as saying in
a different context that there is need for periodical identification
of the backward citizens and for this purpose the need for survey of
entire population on the basis of an acceptable mechanism. The Court
does not want to admit that such an acceptable mechanism already
exists in the form of the NCBC, which is entrusted with the task of
revision, if necessary. The NCBC only found this revision exercise
premature in 2003. If someone is aggrieved with this decision, they
can challenge it, rebut it by proving that many castes in the OBC list
had ceased to be socially and educationally backward. Again, the court
has only come to the aid of the petitioners' lazyness. On the
contrary, imagine what could happen if the GOI follows the suggestion,
carries out a survey, periodically identifies more backward citizens,
only to show that the number of SEBC requiring reservation is much
more than what was earlier believed to be. The Court is only opening a
Pandora's Box.

Here, I would like to correct Mr.Vivek Reddy. The court did not say
that the Act is unconstitutional as of today. It is not even sure of
this; that is why it has adjourned the case to August for a detailed
hearing, clearly showing that its elaborate hearing for the interim
stay is not at all sufficient. If the government comes up with fresh
evidence, and the Court upholds the Act, will it then compensate the
OBCs who lost one academic year, because of its faulty stay of S.6 of
the Act?


3. The illogical data logic:

My point in raising the issue of governance coming to a standstill is
to show how illogical the requirement of data collection is. Will
anyone suggest data collection to show that the SCs and STs continue
to be deprived or that the castes listed as SCs and STs still fulfil
the criteria for their inclusion? After all, if things can change in
the case of SCBCs, it could happen in the case of SCs and STs also. I
understand SCs and STs suffer from centuries of historical injustice,
and therefore, must be treated on a different plane. But the line of
argument can be the same, without overlooking this essential
difference. Why should we assume that the Govt. did not satisfy any
objective social criterion before treating a caste as backward. I
agree specific instances of abuse of power can always be exposed and
there is a legitimate remedy and a process under the NCBC Act. But why
should we throw the baby with the bathwater?

To put it differently, can Mr.Vivek Reddy as an example, demonstrate
what sort of hard data could be convincing to show that the currently
listed OBCs are SEBCs. The very inclusion of these castes in the lists
carries with it a history of social and educational backwardness – if
not a history of discrimination and deprivation as the SCs and STs –
as documented by their representations to the Government, demands etc.
I fail to understand how such data could be meaningful and convincing
through data collection organized in terms of national surveys or
censuses. Considering the backwardness and poverty level, it would not
be surprising if the people fudge facts, or make spurious claims about
their backwardness. The result would not only be confusing, but
disastrous. Just one instance will explain. The reservations were
first introduced in 1902 and 1921 respectively in princely states of
Kolhapur and Mysore, in response to the local movements against
existing caste based monopoly. Those princely states did not go about
collecting data, but responded immediately to the demands, in order to
prevent social unrest. Similarly, if the modern-day governments
instinctively, and by way of impulse and formal and informal studies
consider a caste as backward, such consideration can be largely
respected, with due regard to a few exceptions, which can be tackled
through the NCBC Act. It is naïve to believe that large-scale surveys,
which the Court has in mind, would be able to help us have fool-proof
OBC lists.

Mr.Reddy himself agrees that the question of overall OBC population is
not directly relevant when it comes to educational institutions. Does
he not agree that the Court is essentially mistaken when it cites
different figures of OBC population, as given by different agencies to
underline its data-quest? In my view, surveys conducted on a large
scale are not the answer to determine whether a caste is SEBC. The
answer has to be found in anthropology and sociology, not in
statistics.

4. Why I feel the 'stay' is unjustfied?

Ans: I would like to draw attention to an important case decided in
2000 by the Supreme Court. It is Bhavesh D. Parish & Others v. Union
of India and Another. In this case, the Court makes an important
distinction between statutes having a bearing on economic policy and
those which do not similarly impinge on economic policy. It cites the
Supreme Court's observations in R. K. Garg v. Union of India 1982 (1)
SCR 947 at 969 to support this distinction.

It says: "When considering an application for staying the operation of
a piece of legislation, and that to pertaining to economic reform or
change then the courts must bear in mind that unless the provision is
manifestly unjust or glaringly unconstitutional, the courts must show
judicial restraint in staying the applicability of the same. Merely
because a statute comes up for examination and some arguablepoint is
raised, which persuades the courts to consider the controversy,the
legislative will should not normally be put under suspension pending
such consideration. It is now well-settled that there is always
apresumption in favour of the constitutional validity of any
legislation,unless the same is set-aside after final hearing and,
therefore, thetendency to grant stay of legislation relating to
economic reform, at the interim stage, cannot be understood. The
system of checks and balances has to be utilised in a balanced manner
with the primary objective of accelerating economic growth rather than
suspending its growth by doubting its constitutional efficacy at the
threshold itself. While the courts should not abrogate its duty of
granting interim injunctions where necessary, equally important is the
need to ensure that the judicial discretion does not abrogate from the
function of weighing the overwhelming public interest in favour of the
continuing operation ofa fiscal statute or a piece of economic reform
legislation, till on amature consideration at the final hearing, it is
found to beunconstitutional. It is, therefore, necessary to sound a
word of cautionagainst intervening at the interlocutory stage in
matters of economicreforms and fiscal statutes."

In my view, this special treatment extended to economic legislations
by the Supreme Court is not at all convincing. But I would tend to
believe that the logic underlying this judgment applies with equal
force to the Central Educational Institutions (Reservation in
Admission) Act, 2007.

To sum up, did the SC conclude that S.6 of the C.E.I.(RA) Act, 2007
was manifestly unjust and glaringly unconstitutional? The court was
not sure, that was why it has adjourned the case for a detailed
hearing. Hence, the stay was apparently unjustified.