Staff Reporter

`This is a case of judiciary taking on "advisory jurisdiction"'

  • Bhardwaj should quit, says Lawyers' Forum
  • Creamy layer not at all before court

    BANGALORE: Retired judges and senior advocates have expressed indignation at the Supreme Court's order excluding the creamy layer among the Scheduled Castes and the Scheduled Tribes from the purview of reservation, saying this is a case of the judiciary taking on "advisory jurisdiction."

    The Lawyers' Forum for Social Justice, of which L.G. Havanur was once chairman, has demanded the resignation of Union Law Minister H.R. Bhardwaj as he "failed" to defend the institution of Parliament and assert its ability to protect the interests of the SCs and the STs.

    "Out of bounds"

    The former Kerala High Court judge, K. Sukumaran, said: "Policy formation is out of bounds to the judiciary. Of late, there has been a tendency on the part of the judiciary to encroach on parliamentary functions."

    A case in point was the Supreme Court demanding submission of a parliamentary committee report, even before it was presented in the House.

    Only when there was all-round consternation and the political parties insisted that Parliament assert itself, did the judiciary step back and modify its stand, Mr. Justice Sukumaran said.

    B.S.A. Swamy, retired Andhra Pradesh High Court judge, said the "creamy layer" issue was not at all before the court. "The issue before the court was whether Articles 16(4) A and 16(4) B are valid or not. Neither the President nor Parliament asked its opinion or advice. The court's job is to only see if the law is being properly applied. The policy of the Government cannot be "dictated" to by 13 judges." Also, the "creamy layer" concept did not find a place anywhere in the Constitution.

    Ravi Verma Kumar, a former Chairman of the Karnataka Backward Classes Commission, and A. Subba Rao, a senior Supreme Court advocate, said the "creamy layer" was a concept that could only be applied to the Backward Classes and the Supreme Court itself struck down a move by the Andhra Pradesh Government to categorise the SCs into four sub-classes. As per the Constitution, the SCs, as identified and categorised by Parliament, could not be further classified.

    "Repeated impediments"

    S. Balathandapani, a Chennai-based advocate, said that in spite of constitutional guarantees, neither the BCs nor the SCs and the STs had been given social justice. Repeated judgments, from the Balaji case to the Indra Sawhney case and the present instance, created impediments to mainstreaming the vast majority of the SCs and BCs, he said.

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