Reality Check India

Strict scrutiny

Posted in Uncategorized by realitycheck on April 14, 2008

So I am reading the judgements in the Thakur case, trying to figure out where exactly the courts stand with respect to the legislature in its wake.  Given the nature of this blog, I paid special attention to the sections on classification / data. The most interesting aspect was the rejection of the so called “strict scrutiny” by almost all judges

“We have not applied the principles of suspect legislation and we have been following the doctrine that every legislation passed by Parliament is presumed to be Constitutionally valid unless otherwise proved,” the CJI said, and whose view was shared by Justice R V Raveendran.

Source  : Hindu

I think this is the one count that clinched it for the government. I count it as a major win that has the potential to set the parameters of the court’s future involvement. ( I hope I am wrong). I wonder if the Youth For Equality and other petitioners would have approached the court if they had been told that the court would not subject the impugned law to test.  If I understand correctly, YFE was not petitioning against the concept of OBC reservations, only against the adhocism exhibited by the government. The creamy layer ruling could count as a win, but I have doubts on that. Say the government acted in an irrational manner while redefining creamy layer. Would the court entertain a PIL ? Maybe Salve and others can interpret it for us in the next few days.

I am new to the ways of the court, so I am looking for education as much as analysis. 

First, I must admit that I was most optimistic that the government could not get away without producing atleast some data.  I was hoping along with YFE and others that the court would certainly call upon atleast a “rational test” if not a strict scrutiny.  Looking back, I guess my optimism was rooted in the events that happened in the Indira Sawhney II case in July 1995.

 See my article on it here.

A quick summary,

The Supreme Court wanted the Kerala Government tImmediately, the Kerala government announced that a committee was to be formed to identify the creamy layer.  This committee was called the Justice Khalid Committee. In just three weeks, the committee was suddenly wound up and the Kerala government declared that there was no creamy layer in Kerala. It then passed an act in the state legislature (The Kerala Act 11 of 1995) to that effect (stating creamy layer will not be excluded from quotas). Not only were there no creamy layer persons at present, but there was no criteria for identying any OBC creamy layer candidate in the future !

This was challenged in court by various organizations such as the forward-caste Nair Service Society and others. The Supreme Court then decided to appoint its own study commission lead by Justice K.J.Thomas. This commission had members from all communities (Sri O.C.  Vincent, IAS, Sri K.P.   Mohammed,Adv.,  Sri  K.  Aravindaksha  Menon). This committee had no trouble in identifying the creamy layer and submitted its report in August 1997.

The court did not accept the Kerala governments act (Kerala Act 11). It did not accept the conclusion of the Justice Khalid Committee either. Just like this Lok Sabha, this was a unanimous decision of an elected government.  It even appointed its own committee (Jus K.J.Thomas) to ascertain facts for itself.  I think this is atleast at the level of ‘rational basis review’, if not ‘intermediate’ or ‘strict scrutiny’. Contrast this with the Thakur case we have today.

Maybe legal minds at Lex and Law And Other Things can share their analysis on the whole issue.

Does this mean no Indian can petition the court citing lack of “due process” (or its Indian equivalent) ?

Of course, we accept and respect the judgement of the honble court.  I am only interested in analyzing the judgement from the angle of balance with respect to the legislature. Will the politicians now treat this as a free ticket to do whatever they want with scant regard for data or due process ?

Stay tuned for some more, before we wrap this up.

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4 Responses

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  1. kaangeya said, on April 15, 2008 at 1:36 pm

    This is a pusillanimous court, and has backed down cravenly fearing that the government is going to clip its wings. Of course legislators think they can think they get away with anything. The entire fedual-socialistic cabal, defined as the Congress and its mainstream opposition of the Emergency days (DMK/and other regional outfits) were simply fighting over the spoils of office during Emergency. Karunandhi or the CPI(M) is very clear that they want autonomy to do those very things that the Center does, not to act differently in the interests of the people. And why are we bothered here about the people? There are large masses of people in our land whose vote can be bought for a few baubles, a TV here, a sari there. Politicians know that, their gauleiters who organise the elections know that. Or else why would there be so much “popular” support for reservations in TN fully knowing that a few communities (4 corner all the seats available? Do such a people deserver any better? No!

  2. reason said, on May 28, 2008 at 12:30 pm

    Let us assume the following happens –

    a) a ‘eligible’ OBC candidate gets admission into a reserved seat. By ‘eligible’ I mean by the prevailing standards of creamy layer.

    b) a general category candidate with one mark more does not get a seat

    c) The general category candidate is poorer than the OBC candidate. Let us assume general category candidate even qualifies for ‘below poverty line’.

    d) the OBC category candidate lives in a apartment in a city. His father’s income is just a rupee below the creamy layer criteria. He studies in a private school. His father is a graduate.

    If this general category candidate goes to court, and uses the article 14 and (amended) 15, and argues that the OBC candidate is not socially or educationally backward compared to him – what would the court do?

  3. realitycheck said, on May 28, 2008 at 3:52 pm

    The court will throw his petition out. Individuals are not the “staging unit” of the quota system.

    Consider this : A OBC caste X gets sufficient (not necessarily proportionate) number of seats in the open competition. Where is the case for further preference for this caste ? Remember this is not victimless. Both the unreserved category and castes with lesser abilities are affected. This is the prevailing scenario in TN.

    It does not take a genius to get this data. A simple database query will provide it.

    The court has not done its constitutional duty in this case. There is no need to get tied up with the “strict scrutiny” standard of the US courts. The US courts also have lesser tests like rational basis and medium scrutiny. What about them ?

    The classifications do not even pass a “baby scrutiny” in my opinion.

    The take away from this case is : “We are outta here fellas. This is too hot even for us”.

  4. reason said, on May 28, 2008 at 4:07 pm

    >> The court will throw his petition out. Individuals are not the “staging unit” of the quota system.

    why do the courts hear quota cases repeatedly? What are the grounds of challenging quota? article 14 and 15? Obviously those are, article 15 is the one being amended.

    Is the individual citizen the ‘staging unit’ for article 15 and 14?


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