In what is being seen as an unprecedented incident in the annals of the Supreme Court’s history, the Govt today sought an early hearing for the quota matter before a bench headed by the Chief Justice, though the matter is pending before another bench with the next date of hearing known.
The not-too-often seen Attorney General of India (AG) led the effort on behalf of the Govt along with the Solicitor General and an Additional Solicitor General. Bizarrely enough (with great respect to the learned man), the Attorney General sought to draw the attention of the Court to his constitutional functions to begin with. The AG mainly harped on the public interest involved and the fact that a year would be lost for the students from the OBC category.
Senior Counsel Mr. Mukul Rohatgi appearing for the anti-reservationists in some of the petitions said that there was no objection to an early hearing in to the matter as it had to happen some day or the other. But he strongly objected to the propriety of the precedent that would be created by the bench headed by the Chief Justice accepting such a demand for an early hearing. His principle objection was based on the practice that when a bench has fixed the next date of hearing (August in this case), the matter could not have been mentioned for early hearing before any other bench (in this case the Chief Justice’s court). Mr. Rohatgi pointed out that it appeared to be a calculated move on the part of the Govt to avoid mentioning the matter before the bench that had refused to vacate the stay yesterday.
Sparks did fly in the court when the other counsel for the anti-reservationists objected to the early hearing and sought to question the urgency in the matter. The Chief Justice remarked that it was his prerogative to decide whether an early hearing should be granted or not and the only matter he had to consider was whether the pleadings were complete and whether the Petitioners were prepared to argue the matter.
At the end of it all, the matter which was scheduled to be heard in August will now be heard on the 8th of May.
But it would take a herculean effort on the part of the Court (unprecedented again) to come out with a final decision in the matter before the admissions for the present academic year close.
On the 8th of May, all that can be expected to be argued would be the necessity of a constitution bench (5 judges) hearing the matter. Thereafter assuming that the 2 judge bench accepts this argument, the matter would be sent to the Chief Justice to constitute a 5 judge bench. This should take considerable amount of time. Thereafter before the 5 judge bench, if the Petitioners argue (which they will) that in view of Indra Sawhney being a 9 judge decision the matter ought to be heard by 11 judges, as per the procedure of the Court, the matter would have to be referred to 7 judges. This would take considerable time again. From thereon, it would be but natural that a reference to 9 judges would be required, before eventually being placed before a bench of 11 judges. Thus to go from 2 judges to 11 judges would not be a short process for the court by any means.
Mind you, the Court’s procedure does not allow leap frogging in the matter of formation of larger benches. A bench of the next largest odd number has necessarily to be formed at every stage i.e. 5, 7, 9 and so on. Only the formation of a 5 judge bench can be done right after a 2 judge bench as the Constitution itself expressly provides for the same in matters of constitutional issues.
The battle is far from over it seems but we need not lose hope.
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i was under the impression that we lived in a democracy, clearly i was wrong. the “elected” government of the “people” thinks that 30% odd OBC vote is better than the 30% odd upper caste vote. it grovels for the 20% muslim vote.
the government is doing its level best to suppress the rights of thousands of poor upper caste and OBC students. the reservation is in the name of the poor, backward OBC student, but suprisingly, the creamy layer is included to allow powerful vested interests to reap benefit.
what importance do my voice and vote have in a democracy, where the government is determined to silence me ? the parliament unanimously passes the law, claiming it is the will of the people, but what about thousands of people protesting in the streets ? how do they make their voice heard in the parliament ?
Do feel little reassured.If what you say is true then it could take well over a year,again proving “this is just politics”.
However Confused’s question is relevant and I too fear the same.
As you have pointed out on last post comment in ref. to my query that If both LS and RS clears the bill then (perhaps) the joint session is not ‘required’ or ‘desired’…some thing to this effect.Do have any ‘precedent’ where the joint session was called despite the bill being passed by both houses?
2.If I recalled right the POTA bill was of course passed by a joint session as it could not muster support in RS then. Even then this UPA (Un Provoked Assasins)of national security,repealed it just as soon they came to power.
What does the law say?
Regards,
PI
Thanks Ninad for the insight.
It looks like the government is clearly not going to backup this policy with data. This is evident from the May 8th date, there is simply no time to get the required data to satisfy the court.
In the meantime, we have the politicians misrepresenting the courts judgement, as one that had banned OBC reservations. It is just asking for data.
The most defining moment in Indian history since Independence is around the corner.
Could this go the way Shah Bano went?
Parliament convenes on April 26th. An early hearing would also go to the same two judge bench.
It appears that there are suggestions for the parliament to change the act that is currently being challenged before the court with the aim of changing the status of the challenge.
Looks like in the Shah Bano case, after the SC passed a verdict awarding the lady maintenance, a special act was passed. Do you have more details of this case? Specifically, after that act was passed, was the supreme court order awarding maintenance to the lady made defunct/not necessary to enforce?
Would like your explanation on what exactly happened at shah bano, and could something similar happen here.
// The most defining moment in Indian history since Independence is around the corner. //
After reading shiv’s post we are way past defining moments on our journey to a banana republic. The first moment on this journey was, as shiv points out, 1951 first amendment. Second significant moment was probably shah bano.
There may not be a fork here RC, we may just be hurtling down the path set in 1951.
Did someone say Banana republic?
Some of you may have missed an interesting piece of news. The parliament is planning to take away IIM autonomy. What this means is that the center is willing to continue to the fight till it gets a judgment in its favor. It will be a matter of who chickens out first.
My guess: IITs (being non-autonomous) will start admission proceedings under the assumption that the judgement will be in favor. They may even start their sessions.
IIMs will be a little different. There will be a minor power struggle and most directors will resign at the end.
The current academic session will get delayed till December and the students will get a taste of intensive courses. I did a couple of those, man they suck.
There is another alternative - IIT and IIMs start sessions but keep the seats for the OBCs who made it this year for next year.
By the way, start preparing arguments for why do you think OBCs don’t need reservation in the private sector.
Jai Hind.
Ninad - Thanks for the note, interesting insights into the Supreme Court saga,Digvijay Singh’s comments on why Supreme Court has been delivering verdict after verdict against Social Justice seem to indicate to me that we are headed for politicisation of the Judiciary not unlike the U.S. Supreme Court where abortion can be both constitutional and unconstitutional depending on which side is appointed to the Supreme Court and constitutionality hinges on 5-4 majorities.
On the 8th of May, all that can be expected to be argued would be the necessity of a constitution bench (5 judges) hearing the matter
The impression I get from
media is a five member bench
will be formed on May 8th itself
to hear this case.The news item
in The Hindu gives this
impression and it talks about
‘final hearing’.
Ninad,
Can you please clarify my question on Shah Bano?
and whether something similar is possible in this case?
[...] on Lex has the legal perspective on this development. Offstumped examines the political [...]
Reason,
When Muslim fundamentalists took to the streets after the Shabano verdict protesting a secular court’s “interference” in what they claimed was a matter to be settled by Shariat, the Congress government brought in a bill to appease the mullahs.. Called, ironically, “Muslim Women’s Protection Bill” or some such thing, this bill provided alimony to divorced Muslim women more or less in line withthe rules of Shariat.
The bill was meant not so much to tide over a certain looming legal crisis as is the situation now as to appease the fundamentalists who wanted to snub secular courts and enforce their writ in Muslim matters. By the time the bill was made into an Act, even Shabano was bought over and no longer sought the protection of secular courts.
Karunanidhi is already warning of pent up anger bursting. He says 2 persons (the judges) cannot decide the fate of a billion. In case you forgot, it was a similar handful of persons at the river water tribunal that decided the fate of farmers in Karnataka and TN. Karunanidhi had no trouble with that. Talk of forked tongues…
[...] Taking an unprecedented shortcut (one that is unavailable to its legal opponents) the government secured the Chief Justice of India’s intervention in the [...]
The Shah Bano case was before the Ninth schedule judgement. Refer http://us.rediff.com/news/2007/jan/11law.htm
What this means is that it may no longer possible to simply pass a lwa, hide it under the ninth schedule and protect it from judical challenges.
In fact my interpreation of the Ninth schedule judgement is that even the Shah Bano case can be reopend for scrutiny and the injustice done to her ( and muslim women in general ) could be offset.
oops .. Got my facts wrong on the Muslim Women (Protection of Rights on Divorce) Act, 1986. It was never under the 9th schdule.
There seem to be lot of fears expressed in the resposes to this post. Broadly there are 4 fears :
1. Whether reference from 5 to 7 can happen without any real arguments ?
The answer is yes.
2. Whether a 5 judge bench might be constituted for the 8th May hearing itself ?
Unfortunately this nightmare seems to be coming true. One can expect this to happen, and there is nothing stopping the CJI from doing so in view of the mandate in the Constitution for setting up of 5 judge benches.
Also, I must correct myself to a certain extent, about the formation of benches and leap frogging. What I had said in my post yesterday was the normal practice that is adopted and is the general rule. But the exception to all general rules regarding constitution of benches and their strengths is that the CJI is the Master of Rolls and does have the prerogative to form benches in a manner he deems fit and even go for leap frogging.
Mind you, any of these eventualities that we are talking of here will be unprecedented.
If the 8th May hearing does happen before a 5 judge bench, it cannot be the final hearing in view of Indra Sawhney being 9 judges and some of the prayers in some of the Petitions necessitate the formation of a 11 judge bench.
What I see as a nightmare on the 8th of May is an interim order by a 5 judge bench lifting the hold on the operation of the Act viz OBCs.
This must not happen !
3. Fears about a Shah Bano like situation & a joint session ?
These fears are out of context. A joint session is a mechanism which exists to end a deadlock between the 2 Houses of Parliament. A validly passed law whether by a slender majority or unanimously or by a joint session is law under Art. 13(3)(a) of the Constitution and for the purposes of judicial review no distinction can be made between them.
Neither of them stands on a better footing from the others when it comes to judicial review.
As for Shah Bano, that was a case of a ‘validating Act’ being passed by Parliament by which they took away the basis of a judgment of the Supreme Court. A validating law will noentheless remain amenable to challenge on the foreground of the fundamental rights.
Thus, in this case, if the Govt enacts a law / amends the existing law so as to take away the basis of a court’s order it would be technically permissible. But the new / amended law would still have to be tested on the basis of the fundamental rights.
Another way in which the Govt could take away the basis of the judgment would be to amend the Constitution. But that again would be open to challenge on the basis of the ‘Basic Structure’ of the Constitution.
4. Fears of the dark days of the Indian Judiciary akin to the days of the Emergency coming back ?
Nitin’s fears are not without reason. I only hope that they do not turn out to be true this time round.
Ninad,
Thanks a lot for these clarifications.
// Nitin’s fears are not without reason. I only hope that they do not turn out to be true this time round. //
Kuldip Nayar writes in Dawn -
http://www.dawn.com/2007/04/21/op.htm#2
“Some way has to be found to put the fear of God in the minds of the judges.”
The UP elections are throwing up some talk of ‘third front’ after the elections. Parties from both the left and the right are talking of this.
Given these, we may have some very scary times ahead. The reservation case could be used as a response to any possible political realignments.
[...] on priorityHold those sighs of relief pals: 5 judge bench could be constituted sooner than expectedSC advances hearing in quota matter after an unprecedented move by the GovtSC unmoved; not to allow UPA to play the game and then set the rulesThe prospect of the UPA’s [...]
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Oh, I didn’t know about the odd numbered bench. One quick question: Suppose the matter is referrd to a 5 member bench, can it refer it to a 7 member bench without actually deciding the legality of the quota?What I mean to ask is that will the only issue before a 5 judge bench would be whether the matter should be referred to a 7 judge bench or not?