[op-ed of the day] A test of law and justice

Mains Paper 2 : Laws, Institutions & Bodies Constituted For The Vulnerable Sections |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Challenging 103rd Constitutional Amendment


Note- Op-ed of the day is the most important editorial of the day. Aspirants should try to cover at least this editorial on a daily basis to have command over most important issues in news. It will help in enhancing and enriching the content in mains answers. Please do not miss at any cost.

CONTEXT

  •  The challenges made to the 103rd constitutional amendment, though, which a two-judge bench of the Supreme Court is slated to hear this month, present a rather more difficult test.Here, the issues involved concern questions both over whether the amendment infringes the extant idea of equality, and over whether that idea is so intrinsic to the Constitution, that departing from it will somehow breach the document’s basic structure.
  • The court’s answers to these questions will operate not merely within the realm of the law but will also likely have a deep political bearing — for at stake here is the very nature of justice that India’s democracy embodies.

Background

The law, which was introduced in January this year, amends Articles 15 and 16 of the Constitution, and grants to the government the power to provide for reservation in appointments to posts under the state and in admissions to educational institutions to “economically weaker sections of citizens [EWS]”.

Reasons for Challenging the amendment

  • According to the petitioners in the Supreme Court, the central hypothesis of the amendment, where reservation is predicated on individual economic status, violates the Constitution’s basic structure.
  • In their belief, the law, by providing for affirmative action unmindful of the structural inequalities inherent in India’s society, overthrows the prevailing rationale for reservations.
  • In doing so, they argue, the amendment destroys the Constitution’s idea of equal opportunity.
  • The Union of India argues that while the Constitution demands equality, it does not confine Parliament to any singular vision.
  • According to it, the power to amend the Constitution must necessarily include a power to decide how to guarantee equal status to all persons.

Meaning and purpose

Constitution’s Idea –

  • The Constitution’s framers saw the measure as a promise against prejudice, as a tool to assimilate deprived groups into public life, and as a means of reparation, to compensate persons belonging to those groups for the reprehensible acts of discrimination wrought on them through history.
  • Marc Galanter has called this a compensatory discrimination principle.

Dismantling the hierarchical structure –

  • By providing for a more proportionate distribution of the share in administration, the programme of reservations, it was believed, would end at least some of caste-based domination of jobs, particularly of employment in the public sector — a domination that was built over thousands of years, where Dalits and Adivasis were denied access to equal status.
  • The strategy behind reservations could, therefore, never have involved an attack on pure economic backwardness.
  • The idea was always to disavow caste-monopoly in the public sector.

The idea of Justice – Behind this thinking was a distinctive theory of justice: that by according a greater share in public life to historically disadvantaged groups the relative position of those groups would stand enhanced.

Challenging Caste Monopoly – No doubt such a policy would not, in and of itself, help eliminate the various inequalities produced by the caste system, but it was believed it would represent a resolute effort to eliminate at least some of the caste-based domination prevailing in society.

Based of Social and educational Backwardness – Indeed, the policy and the idea of justice that undergirds it have been seen as so indispensable to the Constitution’s aims and purposes that the Supreme Court in State of Kerala v. N.M. Thomas (1975) held that reservations based on social and educational backwardness, far from being an exception ought to be seen as an intrinsic facet of the idea of equality.

Problem with new logic 

  • Idea of equality is changed – It is in departing from this logic that the 103rd amendment unseats the Constitution’s code of equality.
  • Transient criterion – Pure financial ability is a transient criterion; it doesn’t place people into a definite group requiring special privileges.
  • Favoring powerful – If anything, allowing for reservation on such a principle only further fortifies the ability of powerful castes to retain their positions of authority, by creating an even greater monopolisation of their share in administration.

Court’s Responsibility

  • When the court hears the challenges made to the 103rd amendment, it must see the petitioners’ arguments as representing a credibly defensible view.
  • The least the court ought to do, therefore, is to refer the case to a constitution bench, given that Article 145(3) mandates such an enquiry on any issue involving a substantial question of law concerning the Constitution’s interpretation, and, in the meantime, stay the operation of the amendment until such a bench hears the case fully.
  • Should the court fail to do so the government will surely one day present to it a cruel fait accompli.
Minority Issues – Dalits, OBC, Reservations, etc.
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