The setting aside of 50% of seats in the proposed Lokpal for Scheduled Castes,Scheduled Tribes,Other Backward Classes,women and minorities,triggered a sharp debate within parties today around a central,normative question: should social diversity,especially inclusion of minorities,weigh in an empowered body to fight corruption?
While the BJP has opposed it and Team Anna,caught off-guard on a sensitive political issue,has declined to comment,legal experts are divided an indication of the protracted debate that lies ahead.
The quota is for places on the proposed nine-member Lokpal bench.
Two former chief justices of India,Justice J S Verma and Justice V N Khare,who do not want to comment specifically on what judges would do should this go up to them,agree with the principle of the Lokpal,visualised as an empowered body,to be representative in the broadest possible way.
Says Justice Verma: I have always believed that those at the top should reflect the plurality of Indian society. That is central to any conception of inclusive democracy that we aspire for. Even without decreeing that there should be places reserved,I have always been a votary of ensuring that there is a broad-spectrum representation of people on benches,for example. Once that is done,it takes away any excuse for turning down any findings of the Lokpal as being the view of a certain empowered caste or class.
Agrees Justice Khare: Ever since 1963,the court has made it clear that it is opposed to reservation above 50%. I reckon they would be indifferent to who you set aside for being represented in that space. If parliamentary wisdom is that certain categories should mandatorily find a place on the Lokpal,why is that objectionable? Women,SCs,STs,OBCs or religious and linguistic minorities,why should they not be made to feel included?
Former Supreme Court judge,Justice B N Srikrishna,says the job requirement for the Lokpal should be unalloyed integrity.
Why is it important to ensure whether the person is a Brahmin,Muslim or another caste? The job of the Lokpal is to fight corruption and those who can do it should be appointed to the post. This wont help the country in the long run, he says. Also,Justice Srikrishna said,if this is challenged in courts,several other issues,untested waters so far, may be raised like why the judiciary or the armed forces should be insulated from the principle of reservation.
Calling the representation issue a red herring thats Constitutionally vulnerable,former Attorney General Soli Sorabjee says: Reservation is for empowering minorities or other such groups,and it should be in jobs and education. Why when we constitute the Lokpal? This is about extraneous elements being dragged in,not relevant to the corruption debate.
Said Jurist Rajeev Dhawan,who describes himself a votary of the rights of minorities and SCs,STs and OBCs: The Lokpal is too big and too unwieldy. And now,they are trying to turn it into a representational tamasha. Even if its not struck down by the courts,it will be Constitutionally stupid.
Former Supreme Court judge,Justice K T Thomas,asks how there can be reservation on the basis of faith while leading legal academician N R Madhava Menon says the move has come when the Supreme Court has not had a final say in the issue of religious minority quota.
The original Constitution does not envisage reservation for religious minorities,it only does for SC/STs and the socially and educationally backward people in the society. How can there be reservation on the basis of faith? This is contrary to the secular aspect, Justice Thomas said.
Menon says there are schools of thought about quota based on religion: One,minority quota is not prohibited by the Constitution,and so is permissible and,two,what is expressly provided for is reservation for SC/ST/OBC classes,and so quota for religious minorities is a questionable constitutional proposition.
So,whether you can extend this sort of reservation under Article 14 (right to equality) is a question which needs to be answered,though there is no expression provision rejecting it, says Menon.
Taking the specific case of Lokpal,termed a constitutional authority, under the Lokpal Bill,Menon says that such bodies do deserve a fair representation to all sections of the society.
But,he adds,that when appointment to such bodies are not based on the process of election but selection,it (appointments) could have been held by a constitutional convention rather than making it a mandatory provision in the Bill.
The governments move comes as the SC in January 2011 is engaged with the issue of extending reservation to Dalit Christians and Muslims under the category of Scheduled Castes,six years after the issue was brought up before it.
A Bench,led by Chief Justice S H Kapadia,has sought the views of the National Commission for Scheduled Castes (NCSC) and the National Commission for Religious and Linguistic Minorities (NCRLM) saying important Constitutional issues arise in the issue.
The SCs verdict would be significant in the backdrop of the Ranganath Mishra Commissions recommendation that backward people among religious minorities should qualify for reservation even though the legal tenability of religion-based reservations continues to be in doubt.