Reality Check India

Article : Powers of separation

Posted in Uncategorized by realitycheck on October 18, 2006

Check out this article by Pratap Bhanu Mehta on the recent events involving the judiciary.

The Supreme Court’s order in the case concerning OBC reservations seems to yet again set the stage for serious awkwardness in the relationship between the judiciary and other branches of government.

Very mildly put. I think we are unfortunately heading for a landmark showdown. Politicians raise unrealistic hopes among their vote banks, then when faced with constitutional questions will try to point fingers at the judiciary. The creamy layer example is a case in point. 

But if you ask the question, who decides when separation of powers has been breached, the answer turns out to be the judiciary. Thus rather than establishing the equality of the three branches, the separation doctrine inevitably ends up undermining itself by privileging the judiciary.

Is there any other option ? We all want a harmonious relationship between the two branches of democracy – but a more agressive legislature will invite a more aggressive response from the judiciary.  Laws are forever, politicians are only for five years.  We are only a few short steps away from total anarchy.

The judiciary has unequivocally excluded the creamy layer in the past. But therein hangs a tale of the de facto limits of judicial power. The creamy layer provisions have often not been enforced, the court has not been able to punish anyone for flouting its orders, and judicial directives on reservations have easily been overturned by constitutional amendment.

See, we are a cycle gap country. If judgements and policies are not watertight and leave a crack in the door for exceptional cases. We will attempt to drive a 18 wheeler through that gap.

11 Responses

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  1. Barbarindian said, on October 18, 2006 at 3:56 pm

    Well timed article. Here is what the politicians think:

    The Supreme Court’s direction is being seen within the political fraternity as an attempt by the judiciary to overstep its domain and prove its oneupmanship over the legislature. Reacting strongly to the apex court’s move, BJP on Tuesday came out in favour of constitutional authorities maintaining the basic precinct of “separation of powers” that holds a parliamentary democracy.

    I think the major caveat is our constitution itself. It is very weak on inviolable fundamental principles. That is why all it takes is a new bill. SC is helpless.

  2. realitycheck said, on October 18, 2006 at 5:35 pm

    At least now they should not knowingly frame laws that fly in the face of establish precedent and the constitution.

    They still have no answer to the question raised by the court, which can be summarized in one line. “Dude, wheres my data ?”

    The government can ignore this simple request at its peril. Data is truth and it will win in the end. I think out national motto reads something like that.

  3. Barbarindian said, on October 19, 2006 at 6:40 pm

    Perhaps a little off topic and you may have seen this already. The NCERT text books are available online.

    I urge you to go through the economics texts for the standards X, XI and XII. I was speechless after I briefly perused those texts.

    A sample story from the text India’s Economic Dvelopment for standard XI:

    Anu and Sudha
    Anu and Sudha were both born on the same day. Anu’s mother and father were construction labourers and Sudha’s father was a businessman and her mother a designer.
    Anu’s mother worked by carrying head loads of bricks until she went into labour. She then went behind the tool shed on the construction site and delivered her baby alone. She fed her child and then wrapped her in an old sari, made a cradle with a gunny sack, put little Anu in it and hung it from a tree. She hurried back to work as she was afraid she would lose her job. She hoped that Anu would sleep until evening.
    Sudha was born in one of the best nursing homes in the city. She was thoroughly checked by doctors, she was bathed and dressed in clean soft clothes and placed in a crib next to her mother. Her mother fed her whenever she was hungry, hugged and kissed her and sang her to sleep. Her family and friends celebrated her arrival.
    Anu and Sudha had very different childhoods. Anu learnt to look after herself at a very early age. She knew what hunger and deprivation were. She discovered how to pick food from the dustbin, how to keep warm during the winter, to find shelter in the monsoon and how to play with a piece of string, stones and twigs. Anu could not go to school as her parents were migrant
    workers who kept moving from city to city in search of work.
    Anu loved to dance. Whenever she heard music she would improvise. She was very beautiful and her movements were graceful and evocative. Her dream was to dance on a stage some day. Anu could have become a great dancer but she had to begin work at the age of 12. She had to earn a living with her mother and father, building houses for the rich. Houses, she would never live in.
    Sudha went to a very good play school where she learnt how to read, write and count. She went on excursions to the planetarium, museum and national parks. She later went to a very good school. She loved painting and started getting private lessons from a famous artist. She later joined a design school and became a well known painter.

  4. cognizant said, on October 20, 2006 at 10:53 am


    When interviewd on the issue of creamy layer in proposed 27% reservation to the OBCs, the union overseas minister Vayalar Ravi said (refer to:
    “Frankly, the Union law ministry’s opinion (Cabinet Note) was not proper. It was not correct to extend the idea of the creamy layer which flows from the Indra Sawhney case regarding job reservations to quotas in educational institutions. These are separate issues.”

    Do you think that these two issues are two separate legal issues? Will the SC’s verdict in the case of Indra Sahney’s case hold good for quotas in educational institues OR will the SC consider “job reservations” and “quotas in educational institutions” as two separate things?

  5. realitycheck said, on October 20, 2006 at 11:45 am

    If there is any confusion then they must seek a clarification from the supreme court. The creamy layer is excluded from the OBCs in both Kerala and Karnataka as a results of Indira Sawhney II.

    Applying the creamy layer to the open competition is nonsense. It is really an attempt to bring down the level of discourse. Open competition is open even for OBCs – even for creamy layer OBCs.

    The court must step in and put an end to this. All OBC ministers agree to keep the creamy layer in. This means the real backwards have no voice in the whole issue. Try asking your night soil cleaners, lorry drivers, hotel servers whether they want to be given preference !

    Just because TN OBCs have enjoyed quotas for 86 years and Kerala Ezhavas for 70 years mean nothing. At best, he is making a strong case for pruning the OBC list.

  6. cognizant said, on October 23, 2006 at 5:53 am


    I wonder ( and am rather shocked) over the ambiguity in interpreting the SC’s verdict on the Indra Sawhney case as to whether it applies to “job reservations” but also to “quotas in educational institutions” !

    Are our laws so unclear that only a bench of SC can decide for us as to what is the scope of one of its previous verdicts?

  7. realitycheck said, on October 23, 2006 at 7:46 am


    You are correct – there seems to be some confusion. I believe the court has issued clarifications in this matter before, I cant find any links though. Maybe the politicians can ask again.

    In my view, this is prevailing view of creamy layer as applicable to OBCs in education.

    The Indra Sawhney 1992 says that the creamy layer must be excluded from the category “Other Backward Classes”. This could mean that the creamy layer is not an OBC for any purpose of reservation. It could be educational, employment, housing or whatever other scheme the government comes up with. So the width of the creamy layer could be interpreted to be much wider.

    In other words, the very definition of OBC means members of backward castes after excluding the creamy layer. This is why all states except TN have excluded the creamy layer from education – even though pre-mandal they might have enjoyed it. The entire confusion today is due to the pressure from Tamilnadu politicians.

    It is clear to everyone, if the government is unclear then it should seek a clarification.

    See extract below.
    “..India shall specify the bases, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections (‘creamy layer’) from ‘Other Backward Classes’..”

  8. Barbarindian said, on October 23, 2006 at 9:48 pm

    The chickens are coming home to roost:

    Indications that Centre may seek to move a larger Bench on the Supreme Court’s order excluding the ‘creamy layer’ or privileged sections of Dalits, tribals and OBCs from all quotas may be posturing than a considered strategy, as such a legal option is not available to government.

    Resolving the political logjam created by the apex court’s creamy layer ruling is proving to be rather more daunting than the government felt earlier, even though political considerations make it amply clear that the Centre has no option but to work around the court’s orders.


    This is apparent from the Constitution and Supreme Court Rules. Under the rules, the apex court has power to review its judgment but such a petition will be decided by the same panel of judges who delivered the verdict.

    And the government’s legal officers would hardly be unaware that in more than 90% cases, review petitions get dismissed.


    I am betting on more constitutional amendments.

  9. Barbarindian said, on October 25, 2006 at 7:47 pm

    Oh oh, here they come:

    The unease in the ruling UPA over the Supreme Court order that “creamy layer” should be excluded from SC/ST reservation was evident on Wednesday with at least two UPA allies demanding an amendment in the Constitution to protect the rights of the weaker sections.

    The demand came from LJP Chief and Union Minister Ram Vilas Paswan and Deputy Leader of RJD in the Lok Sabha Devendra Prasad Yadav amid raging controversy over the order which has evoked sharp reaction from several non-Congress and non-BJP parties.

    Apparently they are trying to “protect the rights” of the creamy layer people. Can you believe these people?

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  11. bad72 said, on September 2, 2008 at 9:03 pm

    hey !!
    its very reasonable article.
    Nice post.
    realy good post

    thank you 😉

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