Retributions  

The Supreme Court cannot fight the battle for the people of India

In a judgment which was not completely unexpected, the Supreme Court has upheld reservations for OBCs in central educational institutions. In a series of four different but concurring verdicts the five judge constitutional bench of the Supreme Court has held,

a) The 93rd amendment to the constitution does not violate the basic structure of the constitution as laid out in the Keshvanand Bharti case.

b) Creamy layer must be excluded as caste cannot be the sole criterion for determining backwardness.

c) Reservations cannot continue in perpetuity and the government may review their effectiveness in five years (Justice Pasayat) or 10 years. (Chief Justice Balakrishnan)

d) Excluding minority institutions from the purview of the reservations is not incorrect.

e) The Court has refused to offer an opinion on extending reservations to unaided institutions as none of these universities had challenged the impugned amendment.

The Court has refused to be involved in the details of the reservation policy leaving that task solely to the government. Therefore, it rejected the petitioner’s argument that lack of data or a definitive list of OBCs by it self vitiated the government’s decision to effect reservations in institutions of higher learning. In the Court’s opinion it is the prerogative of the executive to make that decision with the Chief Justice’s judgment specifically rejecting the ”strict scrutiny test” or the ‘’suspect legislation test”. However, Justice Pasayat’s judgment leaves a window an opportunity open by opining that inclusion or exclusion of a caste may be further challenged in the court.

The implications of the court judgment are clear enough. One, the policy of reservations would continue and may further be expanded to the private sector. Second, the government is likely to operationalize only those parts of the judgments which are political expedient; the suggestion for a five year review process will be ignored  and attempts would be made to subvert the creamy layer criterion. Second, faced with unanimous political opinion, the Court is not likely to risk a confrontation. An adverse judgment would have been overturned by the parliament by passing another constitutional amendment and the Court has recognized this political reality. It reaffirms what this blogger has argued before: The fight against reservations or a culture of entitlement (as Offstumped puts it) can only be a political battle. It must be fought in the streets of India with a very limited role for judicial challenges.

Related readings: Lex, Offstumped, Reality Check.