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By: Naagesh Padmanaban
January 24, 2007
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(The author is a US based Banker and the views expressed are his own
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Thursday, 11th January 2007 will go down in the history of independent
India as a historic day indeed. It was on this day that the Supreme Court
came out with yet another land mark judgment. A nine-judge bench’s
unanimous judgment held that laws taking shelter under the IX Schedule of
the Constitution of India is subject to judicial review. The ruling has
warmed millions of hearts and has been welcomed by legal luminaries in
India.
The ninth schedule was Nehru’s brainchild to keep land reform laws outside
judicial purview. Nehru, the shrewd politician, probably foresaw that such
provisions would be abused. But apparently he was a mute protagonist, hind
sight would tell us. Even he could not have foreseen what succeeding
generations of politicians would be up to. As has been the wont of this
super class of India, this provision was grossly abused over the past six
decades. They packed behind the IX Schedule almost 300 laws to escape
judicial scrutiny. Sadly, many of these legislations have made a mockery
of the citizen’s fundamental rights - to equality and justice against
discrimination on the grounds of religion, race, caste, sex or place of
birth and the equality of opportunity in matters of public employment -
guaranteed by the Constitution, and hence needed a protective cover. These
legislations were craftily designed to create, sustain and pander to a
constituency – a pandering that widened the gulf between the politicians
and the spirit of India. In the context of caste-based reservations, these
fundamental rights were reduced to non-justifiable piece of text.
It should be noted that of late, much has been made in the media of
”judicial activism”. A dispassionate examination of the arguments
presented by the learned counsels during the hearings as well as the
verdict in this case or for that matter the verdicts in other cases that
have riveted the nation’s attention in the immediate past do not show any
“judicial activism”. It is but a fictitious invention of the media and a
hyper sensitive political class that have a vested interest in morphing
the truth. The verdict in question has, after six long decades, put the
judiciary on an equal footing with the legislature and executive. Let
there be no doubt that the ultimate protector of the Constitution in a
democracy is the judiciary and the Supreme Court of India has staked its
claim.
The land mark judgment will open the door to a flood of litigations.
Prominent among them would be those seeking to expunge the Tamil Nadu Act
of 1994 that provides for 69% reservation, quantum of reservations for
other backward castes (OBCs), Delhi (Special Provisions) Act, COFEPOSA and
other well known laws. It would be interesting to watch the sheer number
of litigations that are likely to come up before the courts. Many laws
will not pass muster and are likely to be struck down. However, it would
be ingenuous to expect the political class to take this lying down. In any
case, the outcome of these litigations will chart a new course in the
political history of India.
It will be interesting to see the impact of this ruling on India’s future.
It is easy to foresee far reaching consequences in the spheres of
reservation, economics and politics. Most welcome impact is that it will
put the fear of Courts in the minds of our politicians. That by itself is
no mean achievement.
The biggest impact will be seen in reservation related litigations.
Whether it is the validity of caste-based reservations, exclusion of
creamy layers, reservations in promotional opportunities or for that
matter reservations in private sector – all will be reviewed and decided
afresh. The verdict is a loud and clear death-knell to the present avatar
of reservations!!! This is indeed historic. The author has written earlier
against caste-based reservations. For sixty years, in the name of
affirmative action, a legal perversity was perpetrated on India’s youth.
Over the years, the poorest of poor among the scheduled castes and tribes
have been heartlessly denied their full share, as Manmohan Singh would
like to call, of the fruits of development. Also, thousands of bright
young minds from financially weaker sections were denied professional
education or promising careers in public service only because they were
born in so called forward castes. The fruits, on the other hand, were
funneled to the elite among a group of well organized, obstreperous caste
formations that provided patronage to the politicians. Caste-based
reservation, in reality, was a subterfuge deployed by this small but
influential group to hoard for itself the so called fruits of development
at the cost of every other section of society, in particular the poorer
sections.
When such injustices and rank discriminations were questioned in the
courts of law, the blind lady of justice could provide no redress to the
plaintiffs. The principal obstacle was the protection proffered by the IX
Schedule. Probably a direct consequence was the flight of human capital
from India and a simultaneous but gradual build up of economic deprivation
and poverty. The young India that protested Arjun Singh’s reservations
last year - I am referring to the hundreds of doctors, engineers and
people from every walk of life who took to street protests – stands
vindicated. This verdict of the 11th of January 2007 is no small victory
for them.
The economic consequences are rather indirect. The immediate consequence
is the hope that the litigations that follow will end discrimination in
educational and professional opportunities. Logically, opportunities in
education and profession for all people will empower the underprivileged
families economically. It will slow the flight of talent from India. With
or without political patronage, the poor will have a level playing field.
It is useful to remind here that over 50% of India is below the age of 35.
With most of their productive lives ahead of them, their contributions to
nation building will be enormous. The scheduled castes and tribes will
receive their share of the fruits of development with out being waylaid by
undeserving groups.
The most delectable fall-out is the demise of vote bank politics. It will
be extremely difficult to design laws that are meant to divert political
largesse to well entrenched voting blocks. Ultimately it may even spell
the death of such political vehicles in India. For a pluralistic society
like India, this will be a major leap forward. No longer can the likes of
Arjun Singh think of creating reservations that are impinging on the
rights of others. They have work to hard and come up with new ploys to win
elections.
Finally, it will be difficult even for ”progressive judges” to undo the
fundamental rights of citizens through grandiloquence and subtle and
nuanced judgments that had so far helped reservations rob the future out
of hundreds of young Indians.
The Supreme Court of India has, with a stroke of the pen, saved India from
56 years of a perverse legislative provision, but in the process has also
opened the flood gates to a very welcome litigious year's.
Naagesh Padmanaban
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Previous articles by:
Naagesh Padmanaban
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Undoing India through Reservations
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