Palkhivala for only 30 % Reservation

 The Mandal Commission report had opened the Pandora’s box for the reservations  Unlimited power of amending the Constitution endangers democracy and the unity

Dr. Hari Desai Monday 10th December 2018 05:49 EST

None can dispute the scenario developing in India is the outcome of the caste-based Reservation policy and populist policies followed by all the political parties. Mahatma Gandhi, the Father of the Nation, along with both of his lieutenants, Prime Minister Pandit Jawaharlal Nehru and Deputy Prime Minister Sardar Vallabhbhai Patel, had visualized the vicious circle well in advance. All the three were opposed to the caste-based Reservations while drafting the Constitution of India in post-independence days. It is too late to reverse since it would be suicidal for any political party to oppose or even review the caste-based reservation policy. More and more castes have been agitating to get the benefits of government jobs and education quota in various states. The Mandal Commission report had opened the Pandora’s box for the reservations for the Socially and Educationally Backwards and there is no end to it. Despite the Constitutional bench of the Supreme Court of India in the Indra Sawhaney Case putting a ceiling limit of 50% on total reservations in November 1992, there is hardly any political party, ruling or opposition, which would prefer to follow it.

Nani Palkhivala(11 January 1920- 11 December 2009), who appeared in the Supreme Court for the petitioner, pointed out several defects in the method adopted by the Mandal Commission for ascertaining backwardness. His insisted on merit and percentage of reservations be confined to 30% since reservations were the exception and not the norm. It was rejected by the Bench. The majority placed a cap of 50% on total reservations for appointments made every year. The Article 16(4) of the Constitution reads as : “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 or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

The article is an exception but it is being made the norm in most of the Indian States. Since Tamil Nadu and other States have more than the ceiling limit of 50%, even other States are inclined to follow higher percentage of reservations. Such actions are liable for judicial review. Recent example of Maharashtra passing a bill in both the legislatures in the State to give 16 % reservation to the agitating Marathas makes the total of 68 %! The Patidars of Gujarat are agitating for reservation quota since last more than 3 years and the Rajputs, Brahmins and even Lohanas are queuing up submitting memorandums to the Other Backward Class Commission. Since the elections are round the corner, the announcements are made even to amend the Constitution. Palkhivala had warned more than two decades ago that the trend would lead
to 100 % reservations making it a mockery.

“If a count were to be made of the ten topmost lawyers of the world, I have no doubt that Mr. Palkhivala’s name would find a prominent place therein.” This was the tribute to Palkhivala by Justice H. R. Khanna, a judge of the Supreme Court of India who saved the Constitution of India vide the landmark judgment in the Kesavananda Bharati Case way back in 1973. The Supreme Court constituted its largest ever bench of 13 judges to decide whether Parliament had the unfettered right to amend the Constitution or not. On 24 April 1973, seven out of 13 judges held that Parliament’s power to amend the Constitution was limited. The basic structure of the Constitution cannot be amended. When his junior, M.H. Beg, was appointed the Chief Justice of India, Justice Khanna resigned on the same day in January 1977.

Palkhivala’s book, “We, the People” which was published soon after the Emergency was revoked, carried a full-fledged chapter on him titled, “Salute to Justice Khanna”. He says in the book, “his statue must be installed in every street and corner of the country for the yeoman service rendered by him for the cause of justice”. Till PM Indira Gandhi declared the Emergency, Palkhivala was on her side appearing in her case in the Supreme Court, but the mid-night declaration and mass arrests of the opposition leaders and imposition of pre-censorship to gag the press made him change his mind and conveyed Mrs. Gandhi on 27 June 1975 his decision “to withdraw from the Appeal against the Allahabad High Court’s judgment in the Election Petition against her”. Palkhivala wrote a long letter to the then PM “My dear Indira ji” on 9 November 1975 suggesting her to desist from her efforts to empower the Parliament to amend the Constitution by reversing the Kesavananda Bharati judgment. Possibly due to this communication, the PM gave up the idea to get the judgment reversed and the larger bench of the Supreme Court formed was disbanded!

Nani wrote to the PM: “If Parliament is given an unlimited power of amending the Constitution, the high degree of possibility is that the basic structure of the Constitution which postulates a free democracy and the unity and integrity of the country will vanish within a few years. After you, who will be able to hold the entire country together? The States will fight for greater autonomy than is desirable. It is, to my mind, inconceivable the freedom and unity of the country can survive for long after Parliament’s supremacy over the Constitution is established…The basic structure of the Constitution is the real safeguard of the minorities. They are bound to feel grave apprehension at the prospect of the structure being held alterable. How many of your successors will share your own exemplary non-communal outlook?...India, Pakistan, Burma and Ceylon got their independence at about the same time, and of these countries, India is the only one with political stability. The greatest credit for this achievement is due, apart from the outstanding personality of your father and yourself, to the basic structure of our Constitution.” Palkhivala wrote to her during the Emergency when he along with Justice M. C. Chagla and H. M. Seervai were opposing her undemocratic actions.

Since most of the Indian states are facing agitations by the so-called Savarnas i.e. upper castes demanding inclusion among the Social and Educational Backwards, it becomes Constitutionally necessary to raise the ceiling limit of 50% on total reservation. The political parties are in competition even to amend the basic structure of the Constitution. This would make Nani Palkhivala’s warning prove right that “If Article 16(4) was not an exception, theoretically there could be 100 % reservation! Soli J. Sorabjee and Arvind P. Datar have rightly written in “Nani Palkhivala: Courtroom Genius”: “If the decision in Kesavanda Bharati helped to preserve the unity and integrity of India, the decision of the Supreme Court in Indra Sawhney v. Union of India popularly called the Mandal case- polarized Indian society by upholding reservations that are almost exclusively based on caste.” 

Next Column: The Dream Nehru saw in 1929 at Lahore Fulfilled

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