09th JANUARY 2019

A) Reinstated, conditionally: on CBI Director’s return

Supreme Court Rejects The Centre’s Contention In The CBI Director’s Case, But Softens The Blow

In setting aside the orders divesting Alok Verma of his functions and duties as Director of the CBI, the Supreme Court has strengthened the principle that the head of the agency should beinsulated against any form of interference. The court took up the matter in the midst of an unseemly tussle for supremacy between Mr. Verma and Special Director Rakesh Asthana, with corruption charges being traded. However, the court’s interim order asking for a time-bound inquiry into the charges against Mr. Verma is now of no avail, as the Bench, headed by Chief Justice Ranjan Gogoi, has chosen to deal only with the major question of law involved. The decision has gone against the government, with the court holding that the action taken against Mr. Verma amounted to a ‘transfer’, something that cannot be done by any authority except the high-powered selection committee headed by the Prime Minister in terms of the 2003 amendments to the law. It has rejected the government’s contention that stripping the CBI Director of his duties did not amount to a transfer, but only a measure to deal with an extraordinary situation. It has gone into the legislative intent behind the amendments to the Central Vigilance Commission Act in 2003, which included changes to the Delhi Special Police Establishment Act before coming up with its finding.

The Bench has noted that the amendments flow from the principles laid down by the Supreme Court in 1997 in Vineet Narain to protect the agency, especially its Director, from external interference. As the law is clear that any transfer of the Director can only be made by the selection committee, and there being no provision for any other interim measure, the only way the government can divest the head of the agency of his powers is to let the same committee make the decision. The court has been mindful of the fact that an officer could be stripped of his power without being formally transferred to another position, thereby achieving the objective of interfering with the agency’s functioning by oblique means. Its decision will further strengthen the CBI’s independence. However, it is intriguing that the court passed a consequential order to the selection committee to meet within a week and consider Mr. Verma’s powers and authority. Until then, he has been restrained from making any policy decisions. Having set aside the orders of the government divesting Mr. Verma of his powers, as well as the CVC’s order recommending the action, the court could have reinstated him unconditionally. What it has done, instead, is to soften the blow it had dealt the government by giving it an opportunity to achieve through the committee route what it could not do successfully through its midnight ‘coup’.

B) Quota questions: on 10% reservations

Moves For Reservations On Economic Grounds Are More About Politics Than Social Justice

Rattled by the erosion in upper caste votes in the recent Assembly elections in Rajasthan, Madhya Pradesh and Chhattisgarh, the BJP government has attempted to recover this traditional vote base through an unapologetic political manoeuvre. It has sought to provide a 10% quota for economically weaker sections in public employment and educational institutions. That this is more an election-time signal to upper castes than a genuine attempt to revisit social justice policy is clear for at least two reasons. The 124th Constitution Amendment Bill will have to be passed by two-thirds of the MPs present and voting, and the challenge will be to drum up the numbers in both Houses. And, it is doubtful if it will stand judicial scrutiny. If enacted, the 50% limit on total reservation laid down by the Supreme Court will be breached. (The court did allow for a higher percentage in extraordinary situations, but it does not apply in this case.) Even if it is arguable that such a move will create deserving opportunities to those outside the purview of caste-based reservations, in Indira Sawhney a nine-judge bench had struck down a provision thatearmarked 10% for the economically backward on the ground that economic criteria cannot be the sole basis to determine backwardness. Any attempt to amend the Constitution to extend what is limited to the “socially and educationally backward” to those economically weak is problematic.

If the amendment is challenged, a question that will arise is whether financial incapacity warrants special treatment. With the income ceiling for eligibility likely to be fixed at ₹8 lakh a year — the same as the ‘creamy layer’ limit above which OBC candidates now enjoying reservations become ineligible — an uneasy parity has been created between socially and educationally backward classes with limited means and those who are socially and educationally advanced with the samelimitation. The other issue that has come up frequently when quotas are increased by State governments is that exceeding the 50% limit offends the equality norm. In Nagaraj (2006), a Constitution Bench ruled that equality is part of the basic structure of the Constitution. It said the 50% ceiling, among other things, was a constitutional requirement without which the structure of equality of opportunity would collapse. There has been a string of judgments againstreservations that breach the 50% limit. Another issue is whether reservations can go to a section that is already adequately represented in public employment. It is not clear if the government has quantifiable data to show that people from lower income groups are under-represented in its service. Reservations have been traditionally provided to undo historical injustice and social exclusion suffered over a period of time, and the question is whether they should be extended to those with social and educational capital solely on the basis of what they earn.