New Delhi: While India comes to grips with the Supreme Court’s judgement allowing 27% reservations to other backward classes (OBCs), excluding the so-called creamy layer or second generation beneficiaries of reservation, in Central educational institutions, the spotlight is also on the judgement of justice Dalveer Bhandari.
“During the hearing of the case, justice Dalveer Bhandari silently watched and imbibed and then delivered his judgement. His judgement, while giving Arjun Singh the clean chit to implement 27% reservation for OBCs, cleverly cautions the government from straying away from the constitutional mandate to build a casteless and classless society,” suggests one Supreme Court advocate, who did not want to be named.
Expert view: Justice Bhandari has said that graduation should be the benchmark to check educational backwardness.
The 60-year-old judge completed his graduation in humanities and law from Jodhpur university in Rajasthan.
He then joined a masters programme in law at Northwestern University in the US on an international scholarship. Before being elevated as judge to the Supreme Court in 2005, he was chief justice of the Bombay high court and judge at the Delhi high court. During his tenure as a legal practitioner, Bhandari served as standing counsel to the Uttar Pradesh government.
Legal observers point out interesting aspects of Bhandari’s judgement, such as the reprimand to the government for not fulfilling its obligation to provide free and compulsory education under Article 21A.
According to his suggestion, “A carrot-and-stick approach appears to be the best way to implement Article 21A. Financial incentive programmes have worked well in other countries. We should follow their lead. Once that is done, the government should strictly enforce effective compulsory education laws. Such a policy is bound to pay off.” Bhandari gave the Centre six months to set this into action.
Talking of the judiciary’s power to analyse the 93rd constitutional amendment brought about by the United Progressive Alliance to enable it to enact laws providing reservations for OBCs in centres of higher learning, he said: “Government cannot be trusted; that is precisely why we divide its powers into separate organs. If it could be trusted, there would be no need for co-equal branches in which power is shared. Separation of powers is an axiom of democracy.”
Moreover, Bhandari was the only judge on a bench of five who addressed the question on whether OBC reservation should apply to unaided orprivate institutions. The four others “left the question open” as none of the private institutions had come before the court.
He clarified this question since he was of the opinion that “the government will likely target unaided institutions in the future. At that time, this court will have to go through this entire exercise de novo to determine if unaided institutions should be subject to reservation. Such an exercise would unnecessarily cause further delay. The fate of lakhs of students and thousands of institutions would remain up in the air”.
He held that this was unconstitutional, as it would interfere with a private institution’s freedom to practise business.
“I am in complete consonance with this view, he truly is a forward-looking judge who is serious about important issues faced by the nation,” said Ranbir Singh, vice-chancellor of the National Academy of Legal Studies and Research, University of Law in Hyderabad.
Bhandari also said that graduation should be the benchmark to check educational backwardness.
“Once a candidate graduates from a university, he must be considered educationally forward… For admission into Masters programmes, such as, Master of Engineering, Master of Laws, Master of Arts, etc., none will be a fortiori eligible for special benefits for admission into postgraduation or any further studies thereafter.”
He also added that reservations cannot go on till perpetuity and the government must periodically, “preferably once in five years”, revise its implementation of the OBC quota to incorporate changing circumstances.
“You cannot give crutches to sections at all times. After a point any community or class should come up on their own,” adds Singh.
According to him, Bhandari has rightly laid emphasis on the balance between constitutional goals and the need for reservation for backward classes in the country.
“What he is saying is that we have one of the finest constitutions in the world, so why then shouldn’t we draw a fine balance as per its mandate.”
Attempts to reach Bhandari for his comments were unsuccessful.