Reality Check India

Ninth Schedule verdict today

Posted in Uncategorized by realitycheck on January 11, 2007

Update !!

Most important verdict in 60 years  – Experts 

A nine judge bench unanimously ruled that all acts placed in the 9th schedule after April 24th 1973 (the date of Keshavanand Barathi) can be challenged in court.  The ruling also laid down that individual laws placed under the 9th Schedule will be ruled on by three-judge benches. 

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supreme-court.jpg

The supreme court is expected to deliver its verdict on the Ninth Schedule of the Constitution today. Arguments closed in October 2006, the government was represented by the best legal help possible in India. Reality Check had covered it here and here. This will most definitely be a landmark verdict – probably as far reaching as Keshavananda Barathi Vs State of Kerala.  This will also have an impact on the special status accorded to the state of Tamilnadu for allowing creamy layers as well as exceeding the 50% quota limit.

It is disheartening to see the Indian people blissfully unaware of the absolute gravity of this case. There has been no coverage in the mainstream media. The central question being addressed is “.. do fundamental rights come under the basic structure doctrine.. “. Can you think of any thing more important than this ?

The Bench had dwelt on the issue of whether an act found to be totally violative of the Fundamental Rights guaranteed under Articles 14, 19 and 21 or partly violative as held by a court of law can be put in the ninth schedule to get over the disqualification.

The Court will also give its findings that if a Constitutional amendment, ex-facie violative of the Fundamental Rights, escapes judicial scrutiny if it is straightaway placed under the ninth schedule as has been done by Tamil Nadu Goverment enabling 69 per cent reservations for weaker sections of society in educational institution.

Source : The Hindu
 

More after the verdict.

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20 Responses

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  1. Reason said, on January 11, 2007 at 7:04 am

    unanimous judgment delivered – Laws placed under Ninth Schedule after April 24, 1973, shall be open to challenge in court if they violated fundamental
    rights guaranteed under Article 14, 19, 20 and 21 of the Constitution, the court said (from rediff).
    I think this judgment or case itself was not about tamil nadu’s 69% reservation placed in 9th schedule – though tamil nadu government still engaged the costliest lawyers. But this judgment will open the way for challenging that.

  2. INI Signal - » Landmark judgement said, on January 11, 2007 at 7:22 am

    […] Update: Surprisingly this important case was not covered at all by the media. I am not particularly pleased to admit that I had no inkling of the case. Anyways, RC has more. […]

  3. xyz said, on January 11, 2007 at 8:02 am

    what struck me about the “hindu” report: 69% reserva.. for the WEAKER sections.

  4. Reason said, on January 11, 2007 at 8:15 am

    >>> what struck me about the “hindu” report: 69% reserva.. for the WEAKER sections.

    You got to remember Hindu’s main (only?) market is Tamil Nadu, and practically everybody is OBC there. So when the Hindu editor can pontificate about Iraq and US and foreign policy of Japan and what not, when it comes to keeping his customers happy, he knows what to do.

    After the supreme court ruling about excluding creamy layer in SC/ST reservations, Hindu’s ‘legal correspondent’ wrote a piece quoting a ‘government official’ how that is going to create ‘chaos’ in the country.

    I have been blogging about the most atrocious of the HIndu’s lies. it is surprising that these type of blatant crap passes in the name of ‘fine journalism’. And even more surprising that the ‘middle class’ in chennai will still stick to subscribing to Hindu.

  5. KT said, on January 11, 2007 at 2:31 pm

    I think it has now being covered by mainstream media. I visited sites of CNN-IBN, Rediff and NDTV and they all carry new article regarding the same.

    Well this is not only impotant from Fundamental Rights aspect but also from the aspect of oft debated topic of judicial activism SC. Following this is another judgment in which SC asks the govt. to do police reforms and sets stage for it.

    I blogged on it at http://say-na-something.blogspot.com/2007/01/whose-govt-is-it-anyway.html

  6. rc said, on January 11, 2007 at 5:47 pm

    KT –

    This cannot be considered judicial activism. In fact, this ruling can be thought of setting right some contradictions between the 9th schedule and Keshavananda Barathi (that the basic structure cant be altered).

    Todays ruling says that even a constitutional amendment followed by placing the amendment in the 9th schedule – cannot be allowed to go against the basic structure.

    Articles 14,19,21 are the most litigated because they deal with fundamental rights. The right to equality is paramount. Any exception to the right to equality such as quotas, must have compelling evidence of being in public interest.

    The SC has always had the right to be the ultimate arbiter of any issue related to fundamental rights. This ruling does not change that.

    In practical terms, this ruling will have the maximum effect on the OBC quota (which does not appear to be based on any compelling backwardness data). The only way the UPA governments (led by the Congress party) quota policy would have worked is via a constitutional amendment followed by 9th schedule. Much like TN’s case. This route has been cut off now.

  7. Barbarindian said, on January 11, 2007 at 6:05 pm

    In theory that’s fine. But the IIMs have already started OBC quota implementation. Who will reverse it?

  8. rc said, on January 11, 2007 at 6:23 pm

    Barb,

    Unfortunately, there is no redressal available until the courts step in. In the interim period many thousands of undeserving candidates will avail of the scheme. Take the case of TN, 16 years after Mandal creamy layers are still benefiting as well as enjoying 69% quota. Those students who had to do Zoology because they were denied a MBBS seat have no redressal. Time waits for no man.

    1) The merit students from the forward castes – lose their right to equality (had to do Zoology despite scoring higher marks).
    2) The really backward and poor students – lose their right to social justice.(had to do Zoology despite being poor, really backward and deserving of social justice)

    As you can see, the quota system shafts both social and natural justice.

  9. TamBram said, on January 12, 2007 at 1:47 am

    I heard that on the anti-Hindu Hindu the communist editor has written that he is anguished over the implications on the “WEAKER” sections in TN. So weak that 95% of the state is in dire need of “social justice” including all the politicians and their cronies and those in panchayat bodies in power. And the PMK is shocked, SHOCKED, at the SC judgement. Charges of judical activism are flying around, undermining of the people’s will and all that. Of course with 80% of the so-called lawmakers actually being law-breakers with murder, corruption, theft, rape and extortion in their past and also in the future, one can understand this shock.

    Since the functionally illiterate MLAs cannot understand anything more complicated than some simple Katta Panchayat rules, they have called up each other to see if there is someone smart enough to understand the implications. As I posted before, the only thing which stands between India becoming a banana republic is the Professional Indian Army and the Supreme Court. I would trust either of them any-day than the goons who sit in the ligislatures.

  10. TamBram said, on January 12, 2007 at 1:49 am

    I meant legislatures in the last sentence above

  11. Reason said, on January 12, 2007 at 3:29 am

    You can read the judgment at judis.nic.in – link to this judgment is http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=28469
    I have posted portions of the judgment in my blog. I will post what i think are crucial sections here, because it may have a better chance of being read here 🙂

    A very interesting part of this judgment is a quote from a previous judgment regarding fundamental rights –

    “It is a fallacy to
    regard fundamental rights as a gift from
    the State to its citizens. Individuals
    possess basic human rights
    independently of any constitution by
    reason of the basic fact that they are
    members of the human race. These
    fundamental rights are important as they
    possess intrinsic value. Part-III of the
    Constitution does not confer fundamental
    rights. It confirms their existence and
    gives them protection. Its purpose is to
    withdraw certain subjects from the area
    of political controversy to place them
    beyond the reach of majorities and
    officials and to establish them as legal
    principles to be applied by the courts.”

    And another observation –
    “Fundamental Rights and Directive Principles
    have to be balanced. That balance can be tilted in favour of
    the public good. The balance, however, cannot be overturned
    by completely overriding individual liberty. This balance is an
    essential feature of the Constitution. ”

    69% reservation, that classifies all dominant castes as backward and provides them reservation without considering their economic/social status, is not for ‘public good’ and it completely overturns this balance.

  12. Revathi said, on January 12, 2007 at 8:12 am

    Seems that a lot of good zoologists are to going to be produced. I hope this will increase the quality of research in biotechnology.

  13. srinias said, on January 13, 2007 at 4:58 am

    This judgement is going to check the political class from converting India into first a banana republic and then into a dictatorship which happended to many of the third world countries.A great judgement is delevered.

  14. Iyer said, on January 13, 2007 at 7:19 am

    A much bigger threat. Guys, while we are busy fighting among ourselves, there are many disquieting developments that all our countrymen should become aware of, especially our lower rung politicians like Karu and Ramadoss. Please read the links below regarding the future of India. India is being whipped in the global economy of the future and the urgent need is to upgrade our institutions with a complete focus of excellence and quality.

    http://www.businessweek.com/globalbiz/blog/asiatech/archives/2007/01/cure_needed_for.html

    http://www.businessweek.com/globalbiz/blog/asiatech/archives/2006/08/science_panic_i.html

    http://timesofindia.indiatimes.com/articleshow/1784139.cms

    http://www.dailyindia.com/show/99288.php/PMs-speech-at-94th-Indian-Science-Congress

  15. xyz said, on January 13, 2007 at 8:11 am

    I mjight sound cynical.So many are pinning their hopes on the apex court.But judges, too, are human.They are products of the society of which they are a part.Yes,they are learned,wise etc.

    I can’t help feeling that this judgement itself might become the impetus for the demand for reservation in the highest court of the land.In 1951,the Madras High Court struck down reservation as unconstitutional,but it was overturned by a constitutional amendment.Those were idealistic times.

    Today we have made real progress.There are far greater opportunities.The mindset of a large number has changed.A large number of people in our nation are exposed to the latest current of thoughts in the West.

    Yet many of our backward class politicians are still haunted by the ghosts of the past.Our cultural diversity looms large in the background.The politicians range from the virulently anti brahmin (karu,ramadoss) to those who want to guard their newly acquired territory (gowda,mulayam)

    The BJP has made peace with gowda,nitish kumar while it has lost uma bharti.I feel the national parties have to accomodate mulayam,jaya(thevars)etc. and assimilate these forces into the national mainstream.This is the way Hinduism has evolved.What we are confronted with is a socio cultural issue with important economic ramifications.

    The issue has to be settled politically.Judicial pronouncements will put us back on track but are no substitute for consensus in nation building.(am sounding pompous).

    I think one should not demonise bc’s like thevars,jats,yadavs because reservation is available for sc’s in elite institutions.They will be something more than human beings not to be tempted when reservations are dangled before them.

    I disagree with RC emphatically when he makes reservations for sc’s a holy cow.Even SC’s who have attained the top grade should be removed from the benefits of reservation.This was one of the demands of the agitating students.

    Why should we expect the powerful Obc’s to give up freebies when SC neo elites have permanent access to reservations?

    After a certain point, everyone should compete for jobs etc.With the best in every sphere determined only on the basis of merit.This can come about only by political consensus among the well meaning in all sections of society.we can ignore the likes of karu.

  16. rc said, on January 13, 2007 at 11:27 am

    >> The issue has to be settled politically.Judicial pronouncements will put us back on track but are no substitute for consensus in nation building.(am sounding pompous). >>

    True, but the devil is the very nature of majority consensus. The SC is merely laying down the ground rules.

    >> Why should we expect the powerful Obc’s to give up freebies when SC neo elites have permanent access to reservations? >>

    Very deep question !

    I have claimed on this blog that *SCs alone* have the right to social justice in the form of reservation (numerical quotas). I stand by that. However, the most imporatnt aspect in a group quota is the concept of a “connecting thread” between the units within the group. As an example, what is the connecting thread between the Chamar and the Bhangi ? If a social justice policy uplifts 10 Chamars, will it lead to a more honorable living for the Bhangi. The answer to this question is the root of the entire concept of group quotas, such as the one we have in India.

    Let me draw a parallel with the USA, with the warning that AA is not a quota system. There is homogeniety among the black population. If a few students from Chicago make it to law school taking advantage of AA policies, every black student gets something out of it. A black student from Philly can just take a grayhound to Chicago – be virtually indistinguisable from the local population. The connecting thread is strong.

    If the connecting thread is weak or does not exist, the only solution is to make a subquota. I support this for SCs. However, we must not prevent the formation of a creamy layer is SC society. They need their share of big guns too. Unfortunately, when SC families more up the social ladder, they start behaving like neo-brahmins.

  17. Brahman said, on January 16, 2007 at 4:27 am

    Interesting article on a very similar process in Malaysia. Please check the following Wikipedia link:

    http://en.wikipedia.org/wiki/Bumiputra

    It says that the Constitution of Malaysia was amended specifically in the early 1970’s or so to specifically include “Bumiputras” (Article 153), a corrupted form of the Sanskrit Bhumiputra (“sons of the earth”), in group quotas. The Chinese and Malaysian Indian minorities were not considered Bumiputras, and they were very successful in business, trade and education. However, non-Malay Muslims were considered Bumiputras (similar to non-Tamil FCs considered as backward in TN), even though Chinese or Malaysian Indians lived in Malaysia for many generations.

    Clause 5 of Article 153 affirms Article 136 (fundamental right to equality)
    Clause 9 of Article 153 affirms that “Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.”

    Uncanny isn’t it?

    Also, regarding a sunset clause in the Bumiputra quota, one leader Ismail mentioned that it should continue until hundreds of years until Malays gained self-confidence and everyone had the best education. Doesn’t this sound “exactly” like Ramadoss from TN? The “backward” champions seem to use the same rhetoric worldwide.

    The final part is worth mentioning:

    Present condition of the Bumiputra – where the leaders bemoan the fact that quotas have made the Malays weak while the Chinese and Indian minorities have continued to adapt and find ways to succeed.

    It is also worth noting that the separation of Singapore was primarily because of the Bumiputra issue, where the ethnic Chinese and some Indians (mostly Tamil) separated from Malaysia. And no prizes for guessing which country ended up being richer and powerful. GDP per capita figures tell the stark difference between the two.

    Could that be the future of TN also, where TN Brahmans, suffering from the Bumiputra issue demand and secure a separate city-state for themselves? If TN Brahmans were not able to go abroad, or to other parts of India, I bet something along these lines would have already happened.

    Reading the pessimistic accounts of the closely parallel situation abroad, I feel it is time to seriously think about Brahmans at least having their own state in India. If quotas become a state subject, I feel this can relieve a lot of pressure in the system, where each group can then have 100% quota in their own state and develop accordingly without this constant feeling of revenge and counter-revenge.

  18. Brahman said, on January 16, 2007 at 4:37 am

    Upon further reading of the Malaysian story, I am coming to the conclusion that the best thing is to spread the word, to contact other websites, associations, blogs etc and seriously think about establishing a movement to have a separate State or Union territory for Brahmans and other FCs from TN. And maybe similar initiatives in other States also. The future is very clear, and I think the time has come to make a stand. These Supreme Court judgments notwithstanding, the Bumiputra wave is not going to stop. The Indian constitution is the most malleable piece of document in the world, and is amended every year like some kind of housing association rules. As the quota-mad Bumiputra wave steepens, time to get out of its way.

  19. Brahman said, on January 18, 2007 at 3:55 am

    Actually, RealityCheck seems to be correct about the theory that the Dravidian movement was primarily an upper-caste Non-Brahmin movement. The following link outlines a fascinating look into the early 1900’s and how the Mudaliars, Naidus, Chettiars and others who formed 20% of the population joined together to dethrone the Brahmins. Their resentment was aggravated by the fact that Brahmins had become quite adept at English and had thus cornered most of the administrative positions in TamilNadu under British rule. They were also highly literate (75% literacy even in those days), and hence were widely resented by the Kshatriya and Vaishya classes who were Zamindars and merchants.

    http://www.tamilnation.org/caste/nambi.htm

  20. Raj said, on March 13, 2007 at 4:58 am

    @RC

    Do you claim that the well off SC’s still need reservations? If Brahmins had been unfair to the dalits centuries back, when India was NOT a democracy, is it justified that they are provided with reservations now in a democractic India, especially when they are not educationally, economically and socially backward, as the word ‘backwardness’ is perceived? I think you need to undergo a self-reformation.

    Worse, the apex court also thinks that the creamy layer should not be applied to SC’s and ST’s.


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