Political expediency often prevents politicians from accepting Supreme Court’s rulings on constitutional provisions relating to caste and creed — be it the 1985 judgment in Shah Bano case giving Muslim women their due after divorce or the recent verdict reiterating rulings since 1968 on non-fundamental character of reservation under Article 16, which guaranteed the fundamental right of equal opportunity in public employment.
In a reaction that is over 50 years late, Union minister Ram Vilas Paswan has proposed insertion of all reservation laws in the Ninth Schedule of the Constitution to armour-plate them against judicial scrutiny. It will be a futile exercise. For, a nine-judge SC bench in I R Coelho judgment [2007 (2) SCC 1] had ruled that laws inserted in the Ninth Schedule did not enjoy immunity from judicial scrutiny if challenged on the ground of violating the basic structure of the Constitution.
The political class, especially those in power, desires politically expedient rulings from the SC. Recently, former finance minister and renowned lawyer P Chidambaram reportedly told JNU students that if the SC upheld the Citizenship Amendment Act (CAA), then there should be a nationwide agitation. If a man possessing such legal knowledge could undermine the supremacy of law declared by the SC, then one can sympathise with Paswan for reacting the way he did to the SC’s February 7 ruling reiterating settled characteristics of constitutional provisions on reservation.
During a charged debate in the Constituent Assembly on October 24, 1949, on who should enjoy supremacy — legislature, executive or judiciary — B R Ambedkar had said, “I have not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary. That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the state.
“Consequently, it is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the legislature without any kind of compulsory obligation laid down in the Constitution. Similarly, if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court.”
In the Constituent Assembly, Ambedkar had also thrown light on birth of reservation in India while defending his proposal to provide quota in public employment to SCs and STs only for 10 years, that is till 1960. Ambedkar had said, “Special reservation for Mussalmans started in the year 1892, so to say, the beginning was made then. Therefore, Muslims practically enjoyed these privileges for more or less 60 years. Christians got this privilege under the Constitution of 1920 and they have enjoyed it for 28 years.
“Scheduled Castes got this only in the Constitution of 1935. Commencement of this benefit of special reservation practically began in 1937 when the Act came into operation. Unfortunately for them, they had the benefit of this only for two years, for from 1939 practically up to present moment, or up to 1946, the Constitution was suspended and the SCs were not in a position to enjoy the benefits of the privileges which were given to them in the 1935 Act.”
Ambedkar had rejected popular suggestions to amend the proposed constitutional provision to allow Parliament to extend the period if, at the end of 10 years, it thought such an extension was necessary.
“If at the end of the 10 years, the Scheduled Castes find that their position has not improved or that they want further extension of this period, it will not be beyond their capacity or their intelligence to invent new ways of getting the same protection which they are promised here,” he had said. Parliament has since been unanimously voting for extension of reservation every 10 years for another decade.
Paswan was a 21-year-old budding champion of Dalits when a five-judge SC bench in C A Rajendran vs Union Of India [1968 AIR 507] ruled, “Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the government to make reservation for Scheduled Castes and Scheduled Tribes, either at initial stage of recruitment or at stage of promotion.
“In other words, Article 16(4) is an enabling provision and confers a discretionary power on the state to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the services of the state.”
In 1999, a 53-year-old Paswan was communications minister in the Vajpayee government when a five-judge SC bench in Ajit Singh vs State of Punjab [1999 (7) SCC 209] ruled, “In view of overwhelming authority right from 1963, we hold that both Articles 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the state to consider providing reservation if the circumstances mentioned in those articles so warranted.”
A two-judge SC bench on February 7 in Mukesh Kumar vs State of Uttarakhand merely recounted the rulings that have been the law of the land since 1968. Why the brouhaha now?


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