The following is the ‘Introductory Background’ in the Report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes (1999-2000) under the auspices of Ministry of Law, Justice and Company Affairs (Department of Justice) Government of India.
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1.5. Judicial pronouncements made so far regarding the rights and interests of the weaker sections of society like the Scheduled Castes and Scheduled Tribes constitute a most confusing medley of opinion which settles little and unsettles much. High Courts have generally tended to apply restrictive criteria for the reservation policy for such people. So far as the Supreme Court is concerned, there were different phases of its attitude towards the constitutional provisions for reservations. There is no doubt that the Supreme Court through a series of landmark judgments in relation to social justice has shaped the course of our national life. Although there was not much of uniformity in the Apex Court’s decisions, it laid down certain rules or laws of reservation which were being followed over a period of more than four decades. But this Court’s judgments right from the Mandal Case of 1992 upto its latest two judgments delivered on 10.8.99 and 6.9.99 have practically wiped out whatever law was in force since the adoption of the Constitution. The Mandal judgment has clearly exposed the disturbing fact that the apex court does not respect its own previous judgments and can easily unsettle the settled case laws. “Every time this court over-rules its previous decisions, the confidenceof the public in the soundness of the decision of this Court is bound to be shaken.” There is, therefore, a dire need to apply the well-known principle of stare decisis into our jurisprudence. As a result of the propositions of law laid down by the Supreme Court over a period of more than four decades on the various aspects of reservation policy, certain situations crystallised and became a part of the social psyche over a long period. To unsettle them at a later stage is bound to create avoidable problems. But that is exactly what has been done by the Supreme Court judgments first in the Mandal case (1992) and then in two more cases in 1999. According to the principle of stare decisis, whether the court’s interpretation of law is right or wrong is not a matter of moment, for the simple reason that a large number of people have acted upon the interpretation as being the correct law, have incurred obligations, have secured rights, and then to say that all these obligations and rights are founded upon a mistaken view of the law would be to unsettle the social equilibrium. In such a situation the courts take the attitude: “Let the wrong continue.” Our Supreme Court has obviously disregarded this basic principle in the aforesaid cases which are of vital importance to the entire backward classes in this country. The Court has also not stated in any of these cases the “compelling circumstances or reasons” that forced it to reverse the previous judgments of the same Court which were favourable to the policy of affirmative action for the Scheduled Castes & Tribes.
“The Supreme Court is harping on priority of “national interest” above social or other interests and on the “merit alone” criterion in its rulings on reservation policy for backward classes, specially since the Mandal case, one can legitimately ask: how can 10 per cent of the population represent the “national interest” and is not the so-called merit, the result of the cumulative advantages on social, educational and economic fronts enjoyed by a select social group?”
1.6 Referring to the present state of affairs in the country, Justice P.B. Sawant has observed in his judgment in the Mandal case that: “…all aspects of life are controlled, directed and regulated-mostly to suit the sectional interests of a small section of the society which numerically do not exceed 10 per cent of the total population of the country. This has resulted in theconcentration of theexecutive power in the hands of a select social group. It is naive to let believe that the administration is carried on impartially, that the sectional interests are subordinated to the interests of the country and that justice is done to those who are outside the ruling fold”. He further said that the lower castes and classes constitute the overwhelming majority of not less than 75 per cent of the population. In such a situation, when the Supreme Court is harping on priority of “national interest” above social or other interests and on the “merit alone” criterion in its rulings on reservation policy for backward classes, specially since the Mandal case, one can legitimately ask: how can 10 per cent of the population represent the “national interest” and is not the so-called merit, the result of the cumulative advantages on social, educational and economic fronts enjoyed by a select social group? The Supreme Court which is the nation’s last court of appeal, cannot afford to appear unjust in its own domain. But unfortunately that seems to have happened over the years. Judges have of course, the power, though not the right, to ignore the mandate of a statute and render judgments despite it.
1.7Judges from the elite group may find it their filial duty to defend a system established by their forefathers, even at the cost of truth and universal values. The necessity of upholding the system by which they know they stand to profit becomes their limitation or inhibition. How can such judges claim to have to sit in judgment over the issue of the right of the backward classes? The judiciary, must therefore, have members who have first hand knowledge and experience of the problems of the backward classes and have personal interest of sense of involvement in solving them through dispensation of justice. What is needed is empathy and not mere sympathy.
I 1.8 To argue that only those with merit have found a berth in the judiciary is specious. This presupposes that those one the weaker sections do not have enough merit. There is no scientific basis for such a view which can be held only by an incorrigible bigot. The country needs more judges at all levels from different social backgrounds and groups. The spirit of the Constitution should be followed in all fields including the judiciary.
1.9 There is one more aspect of the courts attitude which is noteworthy. The Supreme Court’s opinion (which is nothing but an obiter dictum) in para 112 of the majority judgment on the Mandal case to the effect that the Government should consider and specify certain services and posts actually mentioned by the court) to which the rule of reservation shall not apply is highly enigmatic, if not provocative. After much of sweet haranguing on the concepts of merit, efficiency and competence and the conclusion that reservations are not anti-meritarian, it is a mystery how the apex court could come up with such a contradictory suggestion that merit alone should count for employment in the specified services and posts.
Have they not violated their own principles that “there must be some material upon which the opinion is formed” and that the constitutional questions must not be decided in vacuum? It appears that the Court’s direction to the Government is intended to give validity to a June 1992 judgment of Mr. Justice Katzu of the Allahabad High Court which was not only immediately condemned by three former judges of the same court as illegal and unconstitutional but later also described as wrong by a number of constitutional law experts. The Supreme Court’s obiter dictum (later reiterated in its another judgment) in such a vital matter without any basis of facts before them, cannot but be considered as suspect by a vast majority of the people. It isabsolutely irrational to withhold thepolicy of reservation from some areas altogether as has been done so far in respect of defence services, judiciary, etc. There is nothing in the Constitution to support such action by the Government or to permit the judiciary to suggest such a policy.
1.10 The present set-up of our judiciary is obviously neither sympathetic nor unbiased to the cause of the backward classes and the bureaucracy is quick to implement anti-Dalit decisions of the courts. The representation of the vast majority of these people in the country is still so abysmally poor even after 50 years since the adoption of the Constitution that this state of affairs can no longer be allowed to continue.
1.11 The Committee feel that a firm policy of reservation is the only remedy. The Government in practice has, however, adopted the policy of “Running with the hare and hunting with the hounds” in regard to the question of implementing the reservation policy. This stance of the Government must change. The Committee, therefore, recommend that the relevant Articles i.e. 124 and 217 of the Constitution may be amended suitably to include especially Judiciary wing of the State within the ambit of reservation, and simultaneously a Judiciary Act may be enacted to spell out the governing principles of the proper functioning of the Judiciary especially the Supreme Court and High Courts.
Source: Parliamentary Committee on the Welfare of SC and ST (1999-2000)