People's Democracy

In Defence of Constitution and Social Justice

Nilotpal Basu

TWO orders of the Supreme Court in the last couple of weeks have provoked a fierce debate in the country. The pronouncements, indeed, have far-reaching constitutional implications on the independence of, and separation of powers between, the organs of the state. Given the nature of the orders, predictably almost the entire political spectrum has rallied against the decisions. Beyond the immediate issues which were being examined by the judiciary, what has assumed greater importance as to how the nation will address the concerns of a more equitable and socially just developmental process. And, more importantly, which constitutional organ of the state will take it upon itself to frame the appropriate policies and enact legislations to effectuate these? 

THE OBC QUESTION

The first issue on which the apex court raised questions is the basis of policy for formulating a reservation policy for the Other Backward Classes (OBCs) in the government institutions of higher learning. The background of the issue was premised in the effort of the parliament to bring about a constitutional amendment which ensured reservation for the OBCs in private institutions of higher education, particularly those in the areas of technical and medical education. 

The amendment itself was necessitated by the judgement in the Inamdar case and the order itself implicitly suggested the framing of an appropriate law to ensure the reservation for the OBCs and the regulation of higher technical education. The unregulated, mushrooming growth of higher technical educational institutions initiated by the private sector, which is acting as a huge money-spinner, have been increasingly recognised as a major menace. Hence the need to regulate them.
In the wake of this judgement, the government carried out wide consultations with all the political parties represented in the parliament to frame an appropriate law. The unanimous view was reflected in the framing of a constitutional amendment which, for the first time, validated the reservation of OBCs in private institutions. 

The obvious fallout of this amendment was that the government could not insist on reservation for OBCs in private institutions without first putting its own house in order. This was the impetus for the government policy on reservation for OBCs in government institutions. This resulted in a fierce anti-reservation movement premised on a completely socially conservative platform. Though there was a broad consensus on the desirability of such reservations across the political spectrum, two specific aspects were discussed at length. The need for excluding the ‘creamy layer,’ as was formulated by the Supreme Court in the Indra Sawhney case, as well as the need for increasing the number of seats in government institutions which would neutralise the effect of reservation in accessing such institutions for the open category. The view of the CPI(M) is well-known to our readers to warrant a further repetition here. And, obviously, these views will be reflected once the legislation comes up for consideration in the standing committee and subsequently in the house. 

The government has since then tabled a legislation in the parliament which now stands referred to the relevant parliamentary standing committee. The bill, therefore, is now a property of the house. A parliamentary standing committee is created by the parliament, consists of by members from both houses, in proportion to the presence of different political parties in each of the two houses – Lok Sabha and Rajya Sabha. Therefore, these committees are extensions of the parliament enjoying all its powers, and are accountable only to the parliament. 

The court’s direction to the government to ensure that the standing committee submits its report to the court in a sealed envelop represents a clear constitutional encroachment. Our constitution lays down in very unambiguous terms that the prerogative of policy making lies with the government (of course, with subsequent endorsement of the parliament), while law-making is the exclusive jurisdiction of the legislature. The judiciary, however, can examine the constitutional validity of a law, once it has been enacted by the parliament. But in its process of being legislated, neither the government nor the court has any say on the nature and direction of this exercise. By pronouncing what it did, the court overstepped this constitutional principle and consequently the entire spectrum of political parties rallied in defence of the sovereign rights of the parliament over lawmaking. 

SC/ST RESERVATION AND `CREAMY LAYER’

The question of applying the `creamy layer’ criteria for the SCs and STs were spelt out by the Supreme Court while examining the question of promotion to the SC/ST candidates in government services. The order has provoked widespread opposition for obvious reasons. `Creamy layer’ is not a concept mentioned anywhere in the constitution. Unlike in case of the OBCs, at no point of time has there been any doubts raised on the homogeneity of these communities in terms of the discrimination, exploitation and at times, even untouchability (despite the clear constitutional mandate against this), and the consequent backwardness that they suffered. In this background, if the judiciary takes it upon itself the question of the application of the `creamy layer’ criteria with reference to the SC/ST groups (which was formulated in the Indra Sawhney case on OBCs in the wake of Mandal commission), it again appears to be an overstep in the policy and statutory space. As a retired High Court judge quoted in a newspaper report has rightly observed: “The issue before the court was whether articles 16 (4) A and 16 (4) B are valid or not. Neither the president nor parliament asked its opinion or advice. The court’s job is to only see if the law is being properly applied. The policy of the government cannot be `dictated’ to by 13 judges.”

Similarly, another former High Court judge, referring to this disturbing trend, observed: “Policy formation is out of bounds to the judiciary. Of late, there has been a tendency on the part of the judiciary to encroach on parliamentary functions.” What these observations by noted jurists show is that the critique of the judicial pronouncements comes not only from political parties, as is being sought to be made out by a section of the mainstream media. With their socially conservative agenda, they are working overtime to establish that the need for social justice is an irrelevant idea and that reservation needs to be whittled down. 

CONTINUING RELEVANCE OF RESERVATIONS

Several studies actually show that, as compared to other sections, the development levels of socially vulnerable sections are widening. This is being sought to be advanced as an excuse to bring an end to the reservation policy towards the SCs and STs and oppose the introduction of reservation for the OBCs, whereas it should have led to enforce better implementation. Some political forces are also advocating affirmative action in counterposing them to reservations. But there is no Chinese wall between the two. The principle of positive discrimination which underlies the principle of reservation can work well with complementary affirmative action. In fact, if one goes through the report of the Mandal commission, one will find that alongwith making recommendations for reservation of the OBCs, the report had also suggested certain specific affirmative actions. 

With growing social and economic inequalities, the imperative for addressing them grows paramount. The development process in India cannot be sustained without drawing in sections which were, hitherto, marginalised from the process. The forces of social conservatism, based on our feudal economic structures in India, are increasingly converging with trends and processes which seek to reduce the governmental intervention on policy. 

SOCIAL JUSTICE AND INDIAN CONSTITUTION

There is a fundamental difference in the process which ensured democratic principles and institutions in India, as compared to what happened in western democracies. A revisiting of the realisation of democratic principles and institutions in western democracy, particularly in England and France, will reveal that the battle for institutionalisation of democracy continued for a protracted period of time. This battle led to the bourgeoisie not only coming to prevail upon the forces of feudalism but also on the newly emerging working class. And this resulted in about a hundred years of interlude between the incidence of the democratic revolution and their constitutional translation. 

In India, however, the gains of establishing democratic principles were largely from the changed correlation of political forces in the wake of the big gains of socialism in the immediate aftermath of the Second World War. The gains, thus achieved, were directly enshrined in the constitution. Therefore, there is a continuous attempt to undermine some of these gains for the economically and socially disadvantaged sections. There is a systematic attempt to `roll-back’ some of the political and social rights for them as enshrined in the constitution. 

The Indian republican constitution based itself on four principal pillars – a sovereign parliament with parliamentary democracy, social justice, federalism and secularism. And we have been continuously witnessing an attack on each of these foundations since independence, perhaps more so as and when the factors which led to these gains get weakened. This process has obviously become sharply pronounced with the onset of globalisation. 

The process of globalisation is highlighted by the emphasis on undermining the role of nation-states. The Indian nation-state is based on its three principal constitutional organs – the executive, the legislature and the judiciary. While we have been witnessed the attempts by the executive in the last fifteen years to align the Indian economic policy with those of neo-liberal globalisation, the resistance to this process is also getting reflected in the legislature. In order to get around this opposition, the executive has also continuously attempted to dilute its accountability to the legislature and, in turn, to the people. A few examples like attempts to dilute the condition for bringing a no confidence motion or having a fixed tenure for the parliament, regardless of the majority that the executive enjoys as articulated by the BJP, are cases in point. The dilution of accountability of the executive to the legislature not only weakens the legislature but also undermines its very constitutional authority. The constitutional void which is thus created is sought to be filled up by the judiciary in those circumstances. 

In such a background, the impact of the political change following the 2004 Lok Sabha polls is also now very much on display. Depending on the Left support for its majority in the legislature, the executive’s capacity to pursue the goals of aligning India to the overall objectives of neo-liberal globalisation has come under a constraint. It is here that the judiciary’s more pro-active role, which converges with some of those goals, appears to be more than a mere coincidence. 

It is not only the issues relating to OBC reservation or the wholly non-existent ‘creamy layer’ to be added to the SC/ST reservation question; there is a growing degree of convergence of certain judicial pronouncements with neo-liberal agenda on a number of other issues like the right of the workers to strike, the question of employers being vested with the freedom to dismiss employees at will or the right of the government to privatise its PSUs (as in the BALCO privatisation case). 

It is in this background that one has to view the question of social justice in the Indian constitution and the need for its legitimate defence. The judicial direction on the SC/ST case paradoxically draws itself from article 16 of the constitution on equal opportunities. The question of social justice is dealt with in the constitution under the section of fundamental rights in part 3. Articles 14, 15, 16 and 17, which deal with the issue of social justice, make it abundantly clear that the right of the government to provide for reservation is unencumbered and total. For example, article 15 (4) states: “Nothing in this article or in clause (2) of article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes.”

Similarly, 16 (4) states: “Nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.”

The questions raised by the judiciary attempts to usurp policy space of the executive and the legislative space of the legislature, if not undermine the constitutional spirit itself. This is a challenge which cannot be overlooked. 

IN DEFENCE OF THE CONSTITUTION

The constitutional scheme based on the independence of and separation of powers between, the three organs has, therefore, come under severe strain. It is not only the concept of social justice which faces a threat; the entire constitutional scheme which is under considerable stress. Social justice, as we have seen, is one of the basic features of our constitution. And, according to the Supreme Court itself, this basic feature cannot be tampered with. 

In its response to the judicial pronouncement on the encroachment of the parliament’s jurisdiction, the polity has shown a remarkable unity in defence of the sovereign rights of the parliament. A similar attempt has to be displayed by the political system in responding to the pronouncement over the SC/ST question. It is for the government to convene a meeting, take all the political parties into confidence and galvanise such a course of development. 

The aspirations behind our freedom struggle which got reflected in our constitution, are too precious for the nation. They cannot be allowed to be tampered with. Social justice and the need for mainstreaming the socially vulnerable sections is a cause which is worth the strongest defence the we can put up in these difficult times. As relentless fighters for social and economic equality, we will have to rededicate ourselves to this struggle. 

(The author may be contacted at [email protected]).