Friday, April 11, 2008

The Hindu on the Quota Judgment

The Supreme Court verdict in the Ashok Kumar Thakur case vindicated the Hindu's previous editorial position. No surprises there - the latest verdict follows straight from the judgment in Indra Sawhney (1992). Yesterday's editorial, in addition to reflecting on the sensibility of the opinion, adds:

An earlier Supreme Court judgment had barred the government from appropriating or reserving any seats in unaided private educational institutions but the subsequent Constitution 93rd Amendment enables the state to extend reservations to them as well. This has not been done though, and without a challenge, the Supreme Court has left the question open. The exclusion of minority institutions from the ambit of reservations, however, has been upheld on the ground they are governed by a separate constitutional scheme.


It is correct that the CJI K.G.Balakrishnan's opinion does carry language to that effect but three of the other judges explicitly stated that they were not addressing the question and the fourth (Dalveer Bhandari) chose to strike down a different part of the provision. Altogether in any case, the ratio was not met (3 votes were required for it to have the force of law) and if challenged in the future, the law as a whole is certain to reviewed and there is a fair chance that the entire law including the portion excluding admissions to minority institutions from the ambit of state regulation would be struck down. The Hindu therefore appears to be reading too much into the Chief Justice's words (is it being too anxious to protect this minority privelege?) which ought to be considered as no more than obiter dictum.

8 comments:

socal said...

dictum or dicta? Are you a fan of Scalia?

Anonymous said...

If Chindu reports this, which is most unlikely, I am sure it will make this statement the center piece of the report:

"Indian government has added that the Chinese are not the only ones trying to hack into the MEA server but also hackers from across the world, including that of US and Europe are trying to break in for the sensitive information."



'Chinese hacked our server'
4/11/2008 8:01:23 PM

MEA sources confirm to TIMES NOW that Chinese did hack into the Ministry's servers even though nothing classified was touched
MEA sources confirm to TIMES NOW that Chinese did hack into the Ministry's servers even though nothing classified was touched.

As MEA sources quote, "It is confirmed, the Chinese did try to hack into India's Ministry of External Affairs server."

Government Sources have confirmed to TIMES NOW that a computer network at the MEA was hacked into by the Chinese. This was confirmed after the link to the hackers was traced to China. But sources added that nothing classified was stolen by the hackers.

In the meantime, the Indian government has added that the Chinese are not the only ones trying to hack into the MEA server but also hackers from across the world, including that of US and Europe are trying to break in for the sensitive information.

Government sources further added that despite efforts to revise security measures, which is done so every five years, the problem gets nowhere near getting solved.

For maximum security, each official has two computers, one linked to the internet and the sensitive material is stored in the offline computer.

http://www.timesnow.tv/NewsDtls.aspx?NewsID=7150

pilid said...

Hi socal! Dictum is singular of dicta - I was only referring to one particular observation by the CJI.
Some of Scalia's views are correct and have gained considerable legitimacy more widely (they are all not necessarily original though he has been a more forceful proponent of those ideas). Others are more debatable. With respect to India, the Indian constitution was written in such a way as to obviate many of the controversies that had arisen in the US. Yet, many of the measures that the drafters and the Constitutent Assembly deliberately took have been neutralized through later judicial actions. If the judiciary opines in a way that undoes what the framers explicitly sought to avoid, it is worthwhile asking whether that is a legitimate way to interpret the law - on this point, I do see merit in Scalia's view (though this is a more clear cut case unlike the US constitution which is worded broadly and has thereby given rise to numerous interpretive theories).

Dirt Digger said...

At what cost? Reservation has been a huge drain on society with the brain drain initially and now the unbalanced society's economic structure, it makes it difficult for the real qualified candidates to start their studies in any relevant field. I'll read the actual judgment in the Supreme Court's website and add my comments later.

pilid said...

Dirt digger, I was only making an observation about a general problem with activism. I was not referring to this particular issue.
You are right that there are a significant number of issues associated with quotas and on the face of it, imposes a significant cost.

Dirt Digger said...

Pilid,
You are right about CJ's statements being off the cuff. The issue with Chindu though is they will ignore the bigger picture to clutch at straws as you pointed out rightly.
The larger picture of the current system of reservations being relevant to society today is still not addressed. The note that if a community appears to have been uplifted it should be removed from the reservations list is important but the mechanisms to do that is not detailed.

pilid said...

Correct, dirt digger. What the country needs is an audit to take stock of the consequences of nearly sixty years of quota policy. On the other point that you raise about a mechanism for doing so, I think that is better left to the backward class commissions at the Center and the States which are more well-versed in it. Even in Indra Sawhney I (1992), while laying down a requirement to exclude the creamy layer, the Court left the details to be worked out by the government of the day. As P.B.Mehta points out in his op-ed in the Express yesterday, that does however lay open the possibility of additional controversy as has happened before in case of Kerala.

Praada said...

Dirt Digger,

I really cannot understand how reservation can result in the economic imbalances and brain drain ?