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Journalism of Courage
As the largest Supreme Court bench in the last 30 years hears a batch of 200 petitions dealing with minority rights against the backdrop of Gujarat, the Centre may be in for an embarrassment.
For, its No. 1 law officer, Attorney-General Soli Sorabjee, is set to give his ‘‘personal opinion’’ to the court regardless of the stand the Government has already taken through its No. 2 law officer, Solicitor-General Harish Salve.
At the heart of the current debate is the Government’s argument, stated by Salve, that a minority institution receiving aid from the state should be denied the right it has under Article 30 of the Constitution to reserve seats purely on religious or linguistic lines.
The Government has argued that minority institutions do not have a fundamental right to receive aid. So, as per Article 29(2), no aided institution, minority or otherwise, Salve asserted, can deny admission on grounds only of religion or language.
Several minority institutions have, however, contended that receiving money from the state cannot deprive them of the special right they have under Article 30 — to cater mainly to minorities.
Sorabjee originally kept away from the case because he had represented one of the petitioners in an earlier round of litigation. At the last hearing on May 2, however, the 11-judge bench asked Salve to request Sorabjee to assist the court in the matter. The same afternoon, Salve conveyed his senior colleague’s willingness to make submissions.
The proposal of calling Sorabjee came up at the instance of former Attorney-General K. Parasaran, counsel for one of the petitioners. Invoking what is called the doctrine of necessity, Parasaran suggested that the court ascertain the Attorney-General’s views because of the importance of the issues involved.
The timing of Parasaran’s intervention is interesting: He thought of Sorabjee only a day after Salve got his turn to present the Government’s stand and revealed that it disagrees with the present position of the law on minority institutions. The court had by then heard the
batch of petitions for 20 days when the petitioners’ lawyers, including Parasaran, F.S. Nariman and Rajeev Dhavan, gave their arguments.
Sorabjee, when contacted, said he would take about three hours to state his opinion. ‘‘Since the Supreme Court requested my assistance, I would make legal submissions which in my view represent the correct Constitutional position,’’ Sorabjee said, adding he would do that at the end ‘‘after taking into account the submissions of all the parties, including the Union of India.’’
Pointing out that the Attorney-General’s office has a track-record of taking an independent stand whenever the situation warranted, Sorabjee made a cryptic observation: ‘‘Theoretically, my submissions may not be identical to those of the Union of India.’’
Citing instances when the Attorney General and Government spoke in different voices, Sorabjee said in a case pending before the Delhi high court he is set to oppose the outdated provisions against homosexuality even though the Government has come out in support of them.
Since the court is now on a two-month summer vacation, Salve is expected to resume his submissions on July 16 and he will be followed by counsel representing various state governments. If Sorabjee then makes submissions substantially different from those of Salve, it is likely to open up a fresh plank of attack on the Vajpayee Government, which is already beleaguered by charges of being anti-minorities.
