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Maintaining the balance

There was a time, in the 1970s, when the Supreme Court and the High Courts were under a fierce attack from those in power after a series of judgments went against the government, with inconvenient judges being superseded or transferred and with attempts being made to pack the courts with committed judges. It is a measure of the change in the relative balance of power among the constitutional authorities that the tables have now been turned and the Supreme Court has thought it fit to caution the Government severely against any talk of a confrontation with the judiciary. Judges do not normally take notice of happenings outside. But in a departure from the traditional judicial reserve and even as the Court was hearing an entirely different case, Chief Justice of India R. C. Lahoti expressed his displeasure in the strongest terms over the Centre criticising the Court's judgment that declared government quotas, and along with them reservations, unconstitutional in unaided private colleges. The Court no doubt over-reacted to the demand of all political parties that a law be enacted to provide for reservation for the Scheduled Castes and Scheduled Tribes and other backward classes in unaided professional colleges. The Chief Justice was perhaps anguished over such light talk of overturning the Court's decision on the constitutionality of a measure through passing a law. Still, having now joined the public debate, he can hardly complain if his remarks have come in for some sharp criticism in Parliament.

The latest verdict of the seven-judge bench that sought to clarify the judgment of the 11-judge bench in the T.M.A. Pai Foundation case on private professional colleges declares that unaided colleges should be left free to admit students without the government appropriating any proportion of their seats to be filled through its own centralised procedure. It has also suggested a law to ban unconscionable capitation fees and profiteering. In a sense, it has served to highlight the contradictions that had been building up in professional education, with the State governments abandoning their commitment to provide adequate opportunities and leaving it to private initiative, but still seeking to retain their control over admissions and meet their social commitments to various constituencies. The social commitments through reservations are best met through the institutions run by the state, which need to be expanded. If they are to extend to unaided private colleges, the States and the Centre would be well-advised against any compulsory appropriation of seats that would run afoul of the Supreme Court's decision. They could persuade the unaided private colleges to commit some seats to specific social and economic categories and, if need be, even make income tax, state and local tax concessions contingent on their meeting certain social goals. While the debate has been raised to a high pitch, it is a welcome sign that the Government spokesmen, the Speaker and the leaders of political parties have said they would avoid any confrontation with the judiciary. Equally, it is important that judges too observe restraint and avoid sweeping pronouncements.

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