Supreme Court Sans Sentinel

“Supreme Court Sans Sentinel”

K.M. Vijayan Senior Advocate

No other apt comment can be given against the recent order of the Hon’ble Supreme Court on 13th July, 2010, in the matter relating to the constitutional validity of TamilNadu Act providing 69% Reservation ,than to be simply reproduce the commentary on constitutional law by the renowned Jurist Mr. H.M. Seervai, in his supplement to third edition on constitutional law of India at page 286 to 290,while commenting about the conduct of the 5 Judges of the Supreme Court, in a Constitutional Bench Judgement of the 5 Judges, during 1985 in Vasanthakumar’s case. Which case also involved the challenge to 68% reservation in State of Karnataka in a writ petition that was filed in Supreme Court  pending since 1981.

I cannot resist myself from quoting the text of Mr.H.M.Seervai, which was written so lucidly, with an authority and clarity on the role of Judges under the constitution , applies in all four to the present order of the Supreme Court. To quote.

“ Vasantha Kumar’s Case – A summing up “

“ If then, the courts in this country face up to  such important and none too easy task, it is not out of a desire to tilt at legislative authority in a crusader’s spirit but in discharge of a duty plainly laid down upon them by the constitution. This is especially true as regards “the fundamental rights” as to which this court has been assigned the role of “sentinel on the quivive” (the court) cannot desert its own duty to determine finally the constitutionality of the impugned statute”

Patanjali Sastri C.J

The role of the Supreme Court

a) It is difficult to speak with restraint of the action of 5 judges who heard Vasantha Kumar’s case. The Supreme Court had accepted, and acted upon Patanjali Sastri C.J’s classic description of the role of Supreme Court Judges as “sentinels on the quivive” in protecting fundamental rights, sentinels who would not desert their post of duty of finally determining the constitutional validity of an impugned law.

However for the first time (now for the second time) in the Supreme Courts history, 5 of its Judges (now 3Judges) no doubt unwittingly, ceased to be sentinels and they “deserted their duty to determine finally the constitutional validity of impugned law, which made excessive reservation of seats/posts under Article 15(4) and 16(4). If the only un witting result of their action was to bring down the reputation of Supreme Court to its lowest level, all those value a wise, fearless and independent Supreme Court Judiciary would treat the action of the 5 judges (now 3 Judges) as a single lapse. But the manner in which the 5 Judges acted, the vide departures they made from well settled legal norms, the measure less pains, suffering and misery which their judgements unwittingly inflicted on thousands of persons, can only be described in words which would be in appropriate to a critical commentary on the constitutional law of India. But the wide departure from legal norms, the constitutional infirmities and the curious features of the judgement must be noted at this place if the “sentinels on the quivive” are always to remain at their post of duty to protect fundamental rights, and never to desert that post again.

In hearing the petitions in Vasantha Kumar’s case the Supreme Court was exercising its adjudicatory jurisdiction, and the Judgements in the petition had to determine the rights of the parties to the petition either unanimously or by majority. Admittedly this has not been done.

“In effect they have allowed the State of Karnataka to render the petitions infructuous, the judges were too abashed to add insult to injury by not ordering the State Government to pay the costs of the petitioners, which had been thrown away by the proposal to appoint a State Commission to resolve the dispute.

“ It is submitted that the most un usual feature of the Judgements in Vasantha Kumar’s case is this: citizens aggrieved by the violation of the fundamental under Article 15 (1) and (4) and Article 16 (1) (2) and (4) removed the determination of their fundamental rights from politicians,

and put such determination in the hands of Supreme Court Judges who alone could determine finally whether and to what extent, their fundamental rights had been violated. Five Supreme Court Judges (now 3) who alone could determine finally whether and to what extent, their fundamental rights had been violated. Then came the volte face, when 5 Judges accepted un conditionally the State Government offer to appoint and resolve it by a commission, they handed back to the politicians the power to violate the fundamental rights of citizens.

It is submitted that for this travesty of justice to petitioner who claimed orders from Supreme Court between 1979 to 1985 (now 1994 to 2010) the 5 Judges (now 3) are directly responsible.

Those who had gone through the above paragraphs will come to an irresistible conclusion that what happened in 1985, which the author H.M. Seervai had described and explained as a single lapse, had exactly been repeated in 2010 in the 69% TamilNadu Reservation Act case,  under challenge before the Supreme Court between 1994 to 2010.

Atleast on law, unlike Thomas case from Kerala there was no departure to the rule of 50% cap of by reservation in Balaji case (1963). Ever since Mandal Case in 1993, which was confirmed subsequently in M.Nagaraj case and Ashok Kumar Thakkur case on the quantum of 50% cap on permissible limit of reservation the law was well settled.

The 3 Judges of the Supreme Court had no other option except to follow the 9 Judges Judgement of Mandal Case which was subsequently affirmed by subsequent Constitution Benches.

The 3 Judges of the Supreme Court by remanding back the 17 year long pending case challenging the Constitutional validity of 69% reservation that even after giving protection to the affected candidates for seventeen years successively every year, had deserted their duty to decide constitutionality.

HISTORY- A brief history of the background relating to Reservation may help the reader to have a better perspective of the issue.

1950- When the constitution was adopted there was no legal sanction for Reservation. Infact on the contrary article 14 ensured equality before Law and equal protection before law for all citizens. Art 15 specifically prohibited discrimination among citizen on the basis of Race, religion, caste, sex ,place of Birth or any one of them. Art 29(2) prohibited discrimination in admission to educational institution runs under the aid of Government or run by the government on the basis of religion, race caste. language etc.,

In state of Tamilnadu prior to commencement of constitution since ,1921 there was a communal GO which provided reservsation to all communities including forward communities for admission to colleges run by government.This was challenged by a student champakkam dorai rajan on the ground that reserving seats on the basis of caste goes against the constitutional prohibition referred under art 15(1) and 29(2). The reason for that was ,say there are 5 seats reserved for a community for admission to college and there are actually 7 students who also got good marks but could not be admitted as the quota expires with 5 students, then there is a discrimination on the basis of caste for a student to get admission, even though he scored good marks. The supremecourt accepted the said contention, and held after the commencement of constitution there cannot be any discrimination on the basis of caste particularly for admission to educational institution. The supreme Court struk down the communal GO of state of Madras as unconstitutional.

Tamilnadu which was having representative communal justice had to face a blow to its practice. Hence they pressurised the then central Govt to provide a legal sanction for  communal reservation it followed since 1921. The central government passed constitution 1st amendment and thus article 15 (4) was introduced enabling the state to provide measures for “ socially educationally backward class”  citizenswhich will not be hit by article 15(1) and 29 (2).

Though the central government was carefull in not permitting caste reservation or communal G O practised by state of Madras, in  the past 50 yearsas there was no objective criteria was prescribed,for  identifying socially and educationally backward class, a caste declared by a state government as backward were treated equivalent to Backward class. This constitutional fraud though identifed to certain extent in the recent supremecourt judgement on reservation to central govt educational institutes ,still nothing concrete was done to prevent its misuse. State government thus invariably misused this constitutional concession to the communities it choose,for ultimate vote politics advantages. Starting from MGR Jayalalitha and Karunanithi added communities after communities in the list of Backward or Most Back ward only on expediency and convinience without any objective materials or criteria. All the socalled Backward commissions are retirement post for IAS officer or Higcourt judges who did nothing than to fullfil the ruling governments wishes under which they were appointed.

While this being so,  the state of Karnataka and Tamilnadu started using this concession politics beyond its permissible limits. Karnataka was first to introduce 68% reservation in admission to medical college which was challenged in Balaji vs state of Mysore case in 1963. The supreme Court while considering the case held that equality and  prohibition of discrimination on the bais of caste are the main object of the constitution under art 15 (1) , and reservation enabled under article 15 (4) is only an exception to the main provision. Therefore the admission on merits without discrimination cannot be overridden by excessive reservation, to make the main provision meaning less. Hence it should not exceed majority, which if explained in numerical terms  it should not exceed 50%.

Thus all states including Madras and Karnataka had reservation from 1963 that is Balaji case to 1978( until Thomas case) had reservation only below 50%

THOMAS VS STATE OF KERALA 1978. While deciding a law relating to employment under article 16(4) which was there even when the constitution came, unlike 15(4) which enabled reservation for socially and educationally backward class citizens, held as per that provision which enables adequate representation of a class in a job, in order to meet that adequate representation the 50% cap was not essential.

Though the said judgement was relating to Govt Jobs  the state of Karnataka and Tamilnadu started using that judgement for the admission to educational institution also, to which the Balaji case judgement alone will apply which puts a cap of 50% quantitative restriction. The challenge to that in vasanthakumar case from  State of karnataka ended without a  concrete decision in 1985 due to Supremecourts desertion of its duty to decide that issue.
However this uncertain legal position which continued from 1979 to 1993 until the MANDAL CASE decision for 14 years. Mandal case thus by a majority of 8-1 held  that Reservation cannot exceed 50% reiterating Balaji case decision rendered in 1963. Thus the settlled law in 1963 was flouted from 1979 to 1993 in the first face for 14 years.

However neither Tamilnadu nor karnataka accepted the supremecourt decision and passed  ACTS providing 69% and 73% reservation respectively against the 9 judges bench judgement of the Supremecourt in 1993.

Tamilnadu Act was not only exceeded this 50% quantitative restriction but also was able to put that unconstitutional law in the 9th schedule to get protection under Article 31B with their influence with shri Narasimaraos government.

VOICE- PIL Tamilnadu Act was challenged by voice in Supremecourt on the ground that state was not competent to enact law that was enabling the amendment of constitution under article 368 which is the domain of exclusive legislative power of  the parliament.

Art 31B protection is available only to laws amending property rights like land ceiling and land reform law ,and not  against artcle 14 and 15  equality related law which is essential and basic structure of our constitution. unless constituion is amended enabling excess reservation  more than 50% or by a validation law getting over Mandals case , the decision of Supreme court providing cap on quantitative reservation ,such law cannot be validly passed or upheld.

2006- In the meanwhile the supremecourt held  in VOICE PIL CASE eventhough the tamil nadu reservation law was put in 9th schedule it was amenable to judicial review.

2007 Tamilnadu reservation act was amended by ACT 33 of 2007 amending the quota for BC Muslims and Christians. In which the christian reservation was again repealed. The amendments to Tamilnadu ACT that was put in 9th Schedule looses its 9th schedule protection automatically. what was protected under 9th schedule was the 94 act and not its amended version. There is no protection of 9th schedule to the reservation act that was amended subsequent to placing them under  the 9th schedule.

for all these unimpeachable points of law the Supremecourt ought to have struk down the impunged law  in liminie without waiting for 17 years, but deserting its duty after 17 years , curiously without deciding anything sending it back to state Backward class commission which is not competent to decide any constitutional issue. Particularly its chairman openly profess in Public meeting that 69% law is valid and justified!

The Supreme Court order  therefore suffers from serious infirmity of:

1. “ Leaving the determination of settled constitutional issue of cap on reservation to State Backward Class Commission, which has no authority to decide on that.
2. Court had deserted its constitutional duty and failed to be a ” sentinel on quivive”
3. If the 3 judges felt that 50% cap on reservation should be modified the only option open to them was to refer it to a larger Bench of 11 or 13 judges, which is larger than the 9 Judges Bench in Mandal case which decided that reservation should not exceed 50%.
4. The present order of Supreme Court allowed the State to continue its 69%  reservation even after the decision of Mandal case rendered 17 years before, by vouching the State’s premium on illegality to violate the citizens Fundamental rights under the Constitution of India.
5. Supreme Court failed to note that Act 45/of 94 providing 69% Reservation Act which was put in 9th schedule was made ineffective by the TamilNadu States own amendment of Act 45/94 by Act 33/2007, while providing reservation to Muslims and Christians by not placing the said amendment also in the 9th Schedule. In fact there is no law, as it was enacted and put in 9th Schedule remains in Statute book as on to day!

The only way by which the Honourable Supreme Court can restore its  misplaced dignity is by recalling the order passed by it on 13.07.2010 on the TamilNadu 69% Reservation case,  by giving a hearing on merits and pass an adjudicated order, which alone it is competent to do in a petition under Article 32.

It is more so, because in law and justice under our constitution  the Supreme Court is  though Supreme, but not infallible!