iconimg Sunday, August 30, 2015

Nagendar Sharma, Hindustan Times
New Delhi, August 15, 2013
Under pressure from an aggressive opposition and parties supporting it, the UPA government may have agreed to overturn the Supreme Court judgment against reservation in super specialty faculty posts in AIIMS, but is struggling for an appropriate reason to amend the Constitution.

Following an uproar in the Lok Sabha on the issue on Wednesday, both the law minister Kapil Sibal and the parliamentary affairs minister Kamal Nath assured members that the government would bring a Constitution amendment bill to undo the verdict during the ongoing session.

Within hours, the government also filed a review petition in the Supreme Court against the July 18 judgment by a five-judge constitution bench headed by the former Chief Justice of India, Altamas Kabir.

The government was earlier of the view that it “would first wait for the outcome of its review petition and in case it failed, then the constitution amendment bill would be brought in Parliament.”

Though the review petition was an easy option, the real problem for the government lies in how to justify the amendment in the Constitution, since the Supreme Court has relied on a previous judgment by a nine-judge Constitution Bench in the famous Indira Sawhney case of 1992.


“We impress upon the central and state governments to take appropriate steps in accordance with the views expressed in the Indira Sawhney case and in this case, keeping in mind the provisions of Article 335 of the Constitution,” the court stated in its judgment.

The apex court observed that reservation for candidates of SC/ST or any other categories at the highest level of super specialty would defeat the “very object of imparting the best possible training to selected meritorious candidates.”

The government, in its internal analysis of the judgment concluded that the Supreme Court’s observations are “not binding”, since it has left it to the government to take a final decision.

Its dilemma now is whether to amend Article 335 or Article 16 of the Constitution to bring clarity that reservations won’t be restricted from any sphere.