Hindu dharma is implicitly at odds with monotheistic intolerance. What is happening in India is a new historical awakening... Indian intellectuals, who want to be secure in their liberal beliefs, may not understand what is going on. But every other Indian knows precisely what is happening: deep down he knows that a larger response is emerging even if at times this response appears in his eyes to be threatening.

Thursday, September 08, 2005

New victim of Indian politics: Supreme Court

By: Aruni Mukherjee
September 05, 2005

In a dramatic “access of exasperation”, India’s Supreme Court smashed one of the many balls lobbed in its court by the Government of India regarding reservations for backward classes in private educational institutions, as its months of frustration with the executive branch finally spilled over earlier this week. Needless to say, it has resulted in an intense squabble for gaining political and constitutional ground among the legislative, executive and the judiciary. The entire picture is yet to become clear, but dragging the apex court, one of India’s last remaining venerated institutions, into the political mud-slinging does not bode well for the political discourse in India.

The most startling aspect of this outburst was the terminology in use by the 3-justice bench headed by the Chief Justice R.C. Lahoti, who was unequivocal in expressing his disappointment with the government’s attitude. Slamming the Attorney General Milon K Banerjee, the chief justice said, “Tell us, we will wind up the courts and [you can] then do whatever you want”. Never have such strong words come out of the courts for the government. It seems, however, that Justice Lahoti had ample reasons to be unimpressed.

First, this is the fourth time the Supreme Court has had to make a judgement on a public interest litigation on the same issue- that of giving minorities privileged access to private funded educational institutions. This time it is about the rights of “dalit” Christians; earlier it was about Jains, and so on. There have been rulings against such proposals by three separate benches of 5, 7 and 11 judges, and yet this issue has been propped up again by vested interests, eager to cater to their respective vote banks. While stopping short of explicitly ridiculing the government for its failure to comprehend the clear interpretation of the constitution by the court, it nevertheless implied the same.

Second, the government has been dragging its feet about setting up a committee to review the feasibility of identifying certain Christians as “dalits”, and therefore giving them equal rights as other Scheduled Castes and Tribes enshrined in Article 29 and 30 of the Constitution of India. While the Supreme Court ordered the setting up of this commission nearly a year ago, it is only a day before the hearing for the present case that the government ordered the same. Therefore when the attorney general tried to appease the court by thanking it for “not precipitating setting up of [the] committee”, Justice Lahoti reacted sharply by slashing the 4 month investigation period requested by the centre to 6 weeks, and ordered a status report to be handed in on the 18th of October.

Third, although the government has been mouthing a non-confrontational line in dealing with the highest court of the land, in practice it is planning to bypass the court somehow. The Law Minister H.R. Bharadwaj recent said, “I have not said anything contrary to it [the ruling].” Union Human Resource Development Minister Arjun Singh said that the government was “not looking for a confrontation with the judiciary”. However, calling the Supreme Court’s ruling “uncalled for” and accusing it of fostering “animosity”, Loksabha speaker Somnath Chatterjee made clear that the parliament will reserve the right to pass a law in favour of an issue over which general political consensus is building. Significantly, if a statue law is passed, it risks being declared unconstitutional by the Supreme Court. The parties are therefore contemplating amending the constitution by a 2/3rd majority in the parliament, thus coercing the court to toe their line. No wonder Justice Lahoti advised the attorney general to advise his client to “exercise self-restraint”.

Successive governments in the past have used the amendment tool to squirm out of uncomfortable constitutional dead-ends. The Indian Constitution- already the largest in the world with 395 Articles- has 92 long and detailed amendments to go with it. Had they been done to update a constitution that has outlived its relevance to changing times, the court would have little to say. But it is done to make short-term political gains, notwithstanding it destroying the balance of power among the three branches of the state. Little surprise that Justice Lahoti instructed the government “to give respect to the court [that] it deserves”.

For objective analysis, it needs to be mentioned that the judiciary has remained the most effective organ of the state, since it is also the least politicised. In recent months, it has pulled up the federal government’s not-so-subtle efforts to sweep the dirt in Jharkhand politics under the carpet. It has also allowed the Central Vigilance Commission to raise the Taj Corridor issue that affects one of the heavyweights of Uttar Pradesh politics- ex-chief minister Mayawati. Now with the legislative and executive branch joining forces- the recent hoopla over quotas has seen the right wing BJP sharing the stage with the communists- might just tip the balance against the court. Naturally the court resents the loss of the elevated stature it long enjoyed.

However, is that so wrong? For one, the court is making a principled point that is not- as the government alleges- “unwarranted criticism”. The entire system of reservations for backward classes has failed miserably in India. All it has managed to do is encourage a “creamy layer” among those classes, which prevents the benefits reaching the really under-privileged. For another, the quotas tear apart the social fabric, as it thrives on snatching someone’s job to give to another without proper meritocratic competition. Extending such a distorted system of favouritism to the private sector is a prime example of the state encroaching on the individual’s rights. Instead of allowing a healthy political debate, which might result in resources being diverted to ensure the proper distribution of public services to the most backward, the parties are taking the easy way out by compartmentalising access to education.

This whole debate raises a fundamental question about secularism- and it increasingly shows that in India it is a façade. Secularism rests on the rejection of preference by the state of any particular religion or caste in public life. In India, it has translated into anti-majoritarianism, depriving the poorly defined “majority” for the minorities, and inventing new categories of minorities on a regular basis. Quashing yet another move towards further legalising social discrimination, the Supreme Court is on the right side of the fence on this issue. Yet it may well be a temporary victory, as political parties in Delhi move to introduce an amendment in the winter session of parliament. Indian politics has yet another victim- first it was economics; this time it is the Supreme Court.


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