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, hindsight 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-justiciable 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).
January 15, 2007
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