The case for diversity

When the 5-judge bench was constituted in 2003, the then Chief Justice of India, V.N. Khare, took pains to ensure that four of them were from the 11-judge bench that had decided the Pai case. The rationale obviously was, who better than the very judges who delivered the Pai verdict to clarify its meaning. In the event, the 5-judge bench came up with two judgments: one by the four Pai judges together and the other by the only non-Pai judge on the bench. The pattern shows that as far as those four Pai judges were concerned, they had no doubt that the judgment envisaged state quotas in unaided professional colleges.

It was against such a backdrop that the 7-judge bench was constituted this year to revisit the Pai verdict at the instance of the management of those colleges. Chief Justice R.C. Lahoti, however, departed from his predecessor’s approach in selecting members for the new bench. Though six of the 11 judges who constituted the Pai bench were still serving, Justice Lahoti chose to keep all of them out of the bench meant to reinterpret their verdict. This has had anomalous consequences for the composition of the bench. Though minorities have a major stake in the issue, a senior judge from a minority community, Justice S.N. Variava, was not part of the 7-judge bench because he happened to be part of the Pai bench. So was the case with the only woman judge in the Supreme Court, Ruma Pal. The most glaring exclusion was of Justice K.G. Balakrishnan, the only Dalit judge in the apex court, because the 7-judge bench went on to deliver a verdict that directly affected the interests of backward classes, that too without giving them a hearing.

This is not to suggest that a judge is meant to serve the interests only of his community or that an upper class judge would not be as sensitive to the concerns of lower classes. Rather, it is to suggest that Chief Justice Lahoti should have made a conscious effort to have a mix of Pai and non-Pai judges and to include judges from communities that are likely to be affected by the case. Pai was by no means a routine matter. It’s potentially more sensitive than Mandal, which was only about jobs in the government and public sector. Pai related to something far more sought after: seats in professional courses such as medicine and engineering. It was evident all through that lakhs of students across the country were going to be affected by the ruling one way or the other.

Had the 7-judge bench been more mixed, as suggested, it might still have delivered a unanimous verdict against seat sharing and reservation policy. But it would probably not have been so dismissive, for instance, of the very reservation policy. The 7-judge bench branded it as anti-merit without considering the fact that reservation is provided for right in the Constitution. Such a serious omission, if anything, underlines the case for diversity.

The Indian Supreme Court would have done well to learn from its American counterpart, which upheld affirmative action barely two years ago and ruled that race could be taken as a factor in admissions because it furthers ‘‘a compelling interest in obtaining the educational benefits that flow from a diverse student body.’’ Consider the contrast presented by the 7-judge bench: while disallowing reservations for weaker sections, it endorsed the right of private colleges to have a quota for NRIs. In other words, quota as such is okay if it is for the rich but bad if it is for the poor!