It’s a landmark

Landmark judgments can have one of two features. They can strike an uneasy balance between competing considerations, in a sort of compromise that keeps the peace. Or they can mark out a radically new course of action. Ashok Thakur is an oddity in that, amidst all the complications of four different judgments, it manages to do both. The core orders of the Supreme Court strike a balance between two considerations. A society like India needs affirmative action. But the core question must have some rational justification: Who should be targeted, why should they be targeted and how should they be targeted? For all the brave face the Government is putting up, its perfidy has been exposed. The issue was not whether affirmative action is permissible. What was grossly objectionable was that the government indiscriminately included groups that manifestly ought not to be beneficiaries. They had converted a social policy into a pure power play.

The court has, in deference to the legislature but in line with its own precedent, upheld reservations. It has upheld the constitutionality of the 93rd Amendment and 27 per cent quota for OBCs. But it is in modest ways forcing the government to rationalise the system in at least two ways: the exclusion of the creamy layer from the OBC quota and an injunction that the inclusion of specific groups be reviewed every five years. The rationalisation imposed is modest. Who falls under creamy layer exclusion is relatively clear in case of government employees. But the judges have left the determination of its precise boundaries an open question and potentially given the government a good deal of discretion. This will potentially be a great area of uncertainty in the future. But implicitly there is a reminder that caste is a reality in India but it is not the only reality.

The second area of uncertainty is whether private unaided institutions can come under the purview of reservations. The 93rd Amendment was occasioned by the issue of private institutions in the first place. But strangely, the court refused to pronounce on this constitutional issue on the grounds that no private party was impleaded in the matter. But this is precisely the issue that provoked Justice Bhandari’s dissent to one of the strongest defences of the rights of unaided institutions to date in Indian judicial history. The regulatory uncertainty on this issue is likely to continue for a long time, and may be an indication of how divisive this issue will yet be.

... contd.

Ads By Google

Message*	Maximum characters allowed

Name*		Email ID*
Subject*		Country*

TERMS OF USE:
The views, opinions and comments posted are your, and are not endorsed by this website. You shall be solely responsible for the comment posted here. The website reserves the right to delete, reject, or otherwise remove any views, opinions and comments posted or part thereof. You shall ensure that the comment is not inflammatory, abusive, derogatory, defamatory &/or obscene, or contain pornographic matter and/or does not constitute hate mail, or violate privacy of any person (s) or breach confidentiality or otherwise is illegal, immoral or contrary to public policy. Nor should it contain anything infringing copyright &/or intellectual property rights of any person(s).

I agree to the terms of use.