An obiter which causes worries

The TNPSC took the plea that if details are provided, it would amount to an invasion of privacy and any revelation would create communal disharmony. As against the order of the Tamil Nadu Information Commission directing them to furnish the information sought for, Justice Vaidyanathan did not stop with dismissing the petition of TNPSC.

On the other hand, it was shocking for him to have made these remarks:-

“As long as there is a provision for appointment on the basis of reservation, what prevents the authorities in unearthing those details to the public and when the details sought for are furnished it will throw a clear light...they should think of abolishing the quota system as well as the removal of column regarding caste particulars in the school certificate itself so that the people of Tamil Nadu could stand united under one roof irrespective of caste, creed, religion etc. at least in the year 2050 and our state will be a model state for the whole country.”

One can understand the anxiety of the judge in seeking for a casteless society. It must be noted that even earlier he is known to express his controversial views in his orders. A case relating to registration of a forgery document came up before him. After finding the document was a forged one, apart from imposing a penalty of Rs 1 lakh on the accused, he also added “for having committed forgery, this Court is of the view that such a stringent punishment of chopping of fingers should be awarded to the petitioner. But there is no law to that effect in our country” (PM Elavarasan, 2014).

This was in spite of the fact that the Supreme Court even as early as 1989 had cautioned about the imposition of barbaric penalties on an application moved by the then-Attorney General of India, complaining of a Rajasthan Judge ordering public hanging. It said: “But a barbaric crime does not have to be visited with a barbaric penalty such as public hanging. We would wholly and unconditionally delete the direction given by the High Court in this regard to the execution of the death sentence by public hanging”.

Even later the Supreme Court disapproved the notion of giving penalty based on “an eye for an eye” in criminal jurisprudence and observed: “the learned Sessions Judge, he has referred to the prevalence of death sentence in certain countries and observed that in certain countries where the law provides slashing, beheading, taking ‘an organ for an organ’ like ‘an eye for an eye’, ‘a tooth for a tooth’ to the accused…his passion and prejudices have dominated over his reasoning faculties and the result, as I perceive, is devastating” (Omprakash, 2015).

There was yet another case relating to a professor in a well-known minority college in Tambaram who misbehaved with his girl students and was sacked from the college. When he challenged the order, the learned judge rightly dismissed it. But did not stop with that and felt compelled to give his own sermonizing on the functioning of the colleges run by minorities.

In his judgment, in para 32 he observed: “Christian missionaries are always on the source of the attack in one way or the other and in the present era, there are several accusations against them for indulging in compulsory conversion of people of other religions into Christianity.

Now, there is a general feeling amongst the parents of students, especially female students that co-educational study in Christian institutions is highly unsafe for the future of their children and though they impart good education, the preach of morality will be a million-dollar question. As long as a religion is practised in streets instead of its worship places, like a temple, mosque, church, etc., such devastation, as in the present case, does occur and will be mushrooming” (Samuel Tennyson, 2019).

This was really a bolt from the blue and sent shockwaves to everyone. The church protested, as well the well-known alumni of the college. When the matter was mentioned before him a week later, he withdrew his order and said: “In view of the above submission and considering the fact that the general observation in Para no.32 has been made by this court after the result portion, which will not at any cost affect the findings/ substance/ contents of the order, the said para of the order is hereby deleted” (August 2019).

However, the latest bombshell on the reservation issue is really out of context. We are not concerned whether the TNPSC is right or wrong on declining the details of furnishing sub-castes of candidates who were selected 14 years ago. That will be a matter which higher courts may decide. These days when each caste group asking for a certain percentage of employment in public service has become a new trend and with the Central government even today resisting “census on caste”, the government may be right in refusing. But it is another thing to say that the system of reservation itself is dividing the state and that it was high time to abolish it.

A few years ago, Justice Pardiwala of the Gujarat High Court made somewhat similar observations while deciding a case and exhorted: “ If I am asked by anyone to name two things which have destroyed

this country or rather have not allowed the country to progress in the right direction, then the same is reservation and corruption. It is very shameful for any citizen of this country to ask for reservation after 65 years of Independence. When our Constitution was framed, it was understood that the reservation would remain for a period of 10 years, but unfortunately, it has continued even after 65 years of Independence.”

The matter did not end within the precincts of the court and some lawmakers took up the matter in the Parliament. Hours after 58 lawmakers in the Rajya Sabha submitted a petition to the Chair Hamid Ansari seeking to move an impeachment motion against Gujarat High Court judge JB Pardiwala, the judge deleted the remarks from his judgment saying those were not “relevant and necessary” while deciding the case. He understood his folly.

It must be noted that except in cases of Scheduled Castes, the reservation made for OBCs is for Socially and Educationally Backward Classes (SEBC). It may be so that caste is a relevant indicator for identifying an SEBC for reservation, but it is not a sole criterion. Initially, under Article 334, the reservation even for SC/STs was made only for 10 years and by seven Constitution amendments, it has been made to 80 years. It is for the Parliament to consider the reservation. The court also must realise that notwithstanding the reservation, this country is living under one roof.