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OffStumped For All Things Right of Center, Bringing a Right of Centre Reality Check to Indian Politics, News Media Reporting and Opinion now in Hindi अब आप के लिये हिंदी मे.
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Supreme Court on Tuesday fixed May 8 to take up an application moved by the Centre seeking early hearing on the constitutional validity of OBC Reservations in the IITs and IIMs. A two-judge bench advances hearing slated for August, acceding to Govt’s plea to hear matter at the earliest. After a string of judicial jolts over the OBC quota, the UPA government got its face-saver. This face saver comes within a day of the 2 judge bench of Justice Arijit Pasayat and Justice L.S. Panta refusing to vacate the interim stay on 27 per cent reservation for Other Backward Classes in elite educational institutions. The anti-quota petitioners questioned the propriety of bypassing the two-judge bench, which had earlier fixed the hearing for the third week of August but the Chief Justice K.G. Balakrishnan rejected the argument

saying: “It is my privilege (to entertain an application for early hearing).”

Ninad on Lex has the legal perspective on this development. Offstumped examines the political ramifications.

The most telling political reaction on the OBC Reservation issue with hints of what lies ahead comes from AICC general secretary Digvijay Singh who while expressing disappointment over what he called “the setback for the social agenda of the centre” and said such court rulings could make the socially deprived sections ponder over the courts’ attitude towards socially important legislation. Quoting Digvijay Singh as reported by the Times News Network

“It (the ruling) will hurt the socially deprived sections more than the Congress. It is very unfortunate. I am not attributing bias to the courts but then such rulings will once again make the people of India, especially the socially deprived sections, ponder why courts always go against legislation meant for underprivileged.

“People are observing why legal decisions on social issues are going against”

The Centre’s reaching out to the Chief Justice and the subsequent advancement of the hearing must be seen in this perspective. For long the Indian Judiciary has maintained its above politics status and more often than not in recent times has come out strongly in favor of the people against the Government even if it mean appropriating to itself executive actions where the Government of the day was found to be wanting. But what the Courts have avoided was providing constitutional cover to rank political issues after the costly missteps during the Indira Gandhi era in the run upto emergency.

Two deeply dividing political issues have confronted the courts to date. The first is the Ram Janmabhoomi/Babri Masjid issue which thankfully did not see the politicisation of the courts with both sides quite intent to keep the matter buried for another generation to deal with. The second is the OBC Reservations issue which unlike the Babri Masjid issue is substantially different with the overwhelming political consensus from mainstream national parties like the BJP and regional political parties like the DMK in favor of it. The first round of OBC Reservations much thanks to the Mandal Commission and V.P. Singh passed the Constitutional Muster to become settled law of the land for over a decade now, however the second round has run into stiff constitutional resistance from the Judiciary paving the way for the current impasse.

The Reservations debate in a way is dangerously close to becoming like the Right to Abortion debate in the United States where the constitutionality of the Right to Abortion depends purely on which side of the political spectrum you belong to and in its perverse extreme application it has become a Litmus Test for Judicial Nominations.

So when a Digvijay Singh starts ponder loudly on why legal decisions are going against the Government’s Social Agenda, he is giving us broad hints on an inevitable Social Justice Litmus Test for the Judiciary.

So what would such a Social Justice Litmus Test comprise of, Offstumped has some questions.

Social Justice Litmus Test 1 – Do you believe the Constitution must provide safeguards for the Social Justice Agenda of the Government ?

Social Justice Litmus Test 2 – Do you believe such safeguards must provide for schedules where laws can be parked to be kept out of Judicial Review ?

Social Justice Litmus Test 3 – Do you believe it is Constitutional for the Government in the interest of its Social Justice Agenda to act affirmatively in favor of specific religious and caste groups irrespective of their socio-econoomic status ?

Social Justice Litmus Test 4 – Do you believe it is Constitutional for the Government in the interest of its Political Survival to exempt Members of the Legislature from being appointed to Offices of Profit ?

Social Justice Litmus Test 5 – Do you believe it is Constitutional for the Government in the interest of both its political survival and social justice agenda for Parliament to arrogate to itself absolute powers overruling the Judiciary whenever it deems it fit ?

There you have it folks the inevitable politicisation of the Judiciary coming soon to a court near you with Judges who pass the Social Justice Litmus Tests.

Offstumped Bottomline: Heralding the coming of age of Indian Democracy is the inevitable politicisation of the Judiciary on deeply political issues. Unlike the Abortion issue in the United States that has equally strong political sponsors on either side, the Reservations issue in India has no mainstream political challenge. Hence the importance of the Political War on Social Justice without which we may as well get used to many more Litmus Tests of Entitlement.

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