Perils of Arbitrariness – MSS Pandian

The Central Educational Institution (Reservation and Admission) Act, 2006, which provides for 27 per cent reservation for Other Backward Classes (OBCs) in institutions of higher learning, is in a state of deep freeze. The Union Government’s desperate promises to expand the educational infrastructure in these institutions, to increase the number of seats so that the number of open quota seats will remain the same, and to address the issue of creamy layer, has failed to convince the Supreme Court. After a court battle of five long months, a Supreme Court Bench has finally refused to vacate the stay on the Act imposed in March 2007.
The Supreme Court’s objection to the Act is quite straightforward and seemingly reasonable. It posed to the Union Government, what is the basis on which the figure 27 per cent had been arrived at. The Union Government failed to come up with any credible answer and the Supreme Court, as one would expect, stuck to its position. In other words, Supreme Court wants no legislation to be arbitrary but be based on defendable rational basis.
However, the enigmatic figure 27 per cent has a troubled pre-history. In this history, the Supreme Court’s own arbitrariness looms rather large. The Mandal Commission was for 52 per cent reservation for the OBCs in keeping with their estimated population. Yet it finally recommended not more than 27 per cent reservation for the OBCs. This was so since the Supreme Court had, in several of its earlier judgements, held that the total quantum of reservation should in no case exceed the limit of 50 per cent.
None knows how the Supreme Court had arrived at the figure of 50 per cent as the upper limit for reservations. Mandal wrote, ‘In view of this legal constraint, the Commission is obliged to recommend a reservation of 27 per cent only, even though their population is almost twice this figure.’ Thus, the arbitrary figure of 27 per cent is an inevitable by-product of the Supreme Court’s own arbitrary figure of 50 per cent.
Given this pre-history of 27 per cent, the on-going tussle between the judiciary and the legislature does not seem to be one of the judiciary merely trying to contain the arbitrariness of the legislature. Instead, it seems to be a tussle between two institutions that are critically important for any functioning democracy, to assert which has the right to be arbitrary.
There are other telling parallels in the recent history of the confrontation between the Supreme Court and the Parliament that illustrate this tussle as a tussle over the right to be arbitrary. The Supreme Court’s decision to review any law incorporated into the Ninth Schedule of the Indian Constitution after April 24, 1973, is a case in point.
It is evident that the Indian Parliament has not utilised the Ninth Schedule with the necessary care and diligence and has used it as a sort of catch-all basket. In this sense, the Supreme Court’s decision to review the laws under the Ninth Schedule in terms of whether they contradict the basic structure of the Constitution, is to review the arbitrariness of the legislature.
But the problem lies in what constitutes the basic structure of the Indian Constitution. As Madhav Khosla has argued in a recent article published in Economic and Political Weekly, the Supreme Court has not evolved any definite criteria of what represents the basic structure of the Constitution; and it evaluates this important question on a case-by-case basis. This ‘flexibility and vagueness’ can enable the Supreme Court to exercise its own arbitrariness while deciding whether laws and executive actions confirm to the basic structure of the Constitution.
Khosla also speculates in his article whether the Supreme Court will undertake the exercise of defining what are the elements of the basic structure of the Constitution. According to him, ‘The judiciary will be reluctant to engage in such an exercise, and continue its past approach, for any definition is bound to limit its power as compared with the current position of undefined power.’ After all, arbitrariness is the ultimate sign of power.
Rigidly imposed rules, criteria, and procedures can surely come in the way of legislative and judicial creativeness. But consequences of arbitrariness exercised either by the legislature or the judiciary can be equally devastating. The big question facing the both legislature and judiciary in India today is how to avoid the tyranny rigid rules and definitions, and yet not slide into arbitrariness.

6 thoughts on “Perils of Arbitrariness – MSS Pandian”


    M.S.S. Pandian’s brief and beautiful comment is, as usual, insightful and sensible on many counts. However, I think both his description of the problem and prescription it implies are fundamentally faulty.
    Firstly, his gesture of equating the struggle between Judiciary and Legislative is problematic. One is on the side of those oppressed peoples and the other is for maintaining inequalities in an unapologetic manner. This is not a simple clash of claims to arbitrary power. Such an equation is not an analytically useful comparison, however elegantly such false symmetry is presented.
    Pandian also fails to mention an important recurrent element in the “pre-history” of the arbitrariness. The principle of Equality in the Constitution was first invoked by those who wanted to scrap the reservations and the courts brazenly accepted such an interpretation. It was not a simple case of apathetic literalism but of a convoluted argument presented with a straight face. Then, the politicians again introduced an “exception” to the principle of equality, enabling the governments to take steps like providing special provisions. Courts pointing to one or the other technicality to dismiss the idea of reservations and then legislature coming up with a correction of that defect with a naïve belief that better formulation of the policy would solve the problem only to be faced with another unexpected objection from the court, has been a story repeated too many times in the last four decades. It was not a ‘pre-history’, Dalit-Bahujans and progressives rightly see the Judiciary’s handling of the issues related to reservations in jobs and education as continuous with the Laws of Manu.
    Secondly, Pandian grants too much reasonableness to the Judiciary and then fails to see the logic in the argument that if the special provisions for the underprivileged groups are an ‘exception’ to the rule of Equality, such an ‘exception’ could not be half of the quantum in question. Well, at this point, courts thoughtlessly say that it could not more than 50%, while a logically coherent (though not ‘reasonable’) argument should be “less than half.”
    Therefore, the question is, whether the reservations and other special provisions for disadvantaged communities are to be seen as an exception to the rule of Equality or as a mere explanation of it. In choosing to see the reservations as an exception rather than as a clarificatory detail, courts are behaving arbitrarily while the over-vilified politicians have fallen into the Court’s trap of giving reasons to it. But, their’s is a struggle to overcome the arbitrary monopoly of resources and opportunitie of the upper castes and exclusion of Backward and Dalit Communities from them. Courts need not be told that the delay is the safest tool for denial of Justice. Such a dispute can’t be reasonably seen as clash of two organs of the state, thus reducing the crisis to institutional level. It is a struggle between those fighting for their due and those denying it in favor of the status quo. It is an asymmetrical fight and equating both the parties is the worst form of siding with the powerful.
    Governments are not asked by the courts to show the rationale behind any figure all policies involve.The arbitrariness of the courts lie in forcing the governments to justify only ‘this’ figure and not any other policy or figure.

    Pandian is rightly reputed to be one of the most accomplished deconstructive readers of discourses. It is unfortunate that he reduces the problem to that of reasoning and logic while the question is about the inexplicably tolerated arbitrary power of the judiciary over the legislature. It is particularly surprising that the court is presenting its case in terms of reasonableness but consistently opposing reservations with a shifting series of ‘reasons’ for it.
    Until the issue of OBC reservations come to the discussion it was the opponents of reservations who were to show reasons for opposing it. Now, it is the supporters of the policy and principle of reservations who are asked to justify it.
    My objection is, of course, vulnerable to the charge of being inattentive to the possibility of an anti-people regime establishing an arbitrary rule without judicial checks.
    Can there be anything which could be established beyond dispute on the basis of reason and statistics?
    Rather than proposing the mirage of foolproof rules typical of bureaucratic imagination, Pandian could do well by doing what he does best, exposing the false claims of the court’s logical looking illogic.
    While Courts stated objections in individual cases may convince or confuse us- even the person of Pandian’s caliber- seeing it as one more stage in the long history of Judiciary’s determined opposition to the idea of reservations, would clarify the issue.
    So, the question is not to come up with a better argument or flawless statistics but to democratize the Judiciary from within and take away the arbitrary powers it grabbed for itself.


  2. The Last Objective Historian

    A Tribute to Raul Hilberg

    Holocaust Studies is perhaps the most prolific fields of academic study among the Social and Human Sciences in the West today. Surveys of ‘recent Holocaust Literature’ appear very frequently and there is a growing body of ‘bibliographies of bibliographies’. In such a field his Magnum Opus, The Destruction of European Jewry, first published in 1961, not only stood as classic for well over half a century but also remains unsurpassed. This professor of Political Science is one of the greatest historians of our time. He is regarded as the clearest of the chroniclers of that mind numbing catastrophe, the Holocaust. For five decades he studied and taught Holocaust, though he dislikes the word for its “religious underpinnings.”

    Holocaust Studies is known not only for its rigor and scale but also the range of disputes it continuously generates. If there is one person who commands near universal respect among otherwise deeply divided communities of scholars in this field, it is surely Raul Hilberg. His distinction doesn’t stop here, he even enjoys the most unlikely thing in Holocaust Studies: near universal approval, though, with the predictable exception of the Holocaust Deniers and Holocaust Deifiers. He gained it to a large extent with his doctoral dissertation, he never held any powerful academic posts and his department and the university are marginal in the academia. As
    Goetz Aly noted, ‘his work brought forth a loose-knit, informal club of historians spread across the world who began to work in his spirit. Perhaps he was able to achieve this precisely because he never possessed academic power’. Instead, ‘His influence was and is based purely on his example’. The Holocaust, arguably the biggest crime of the century, perhaps in the history of human kind, was perpetrated by the most educated nation of the time on the supposedly most intellectual community- Jews. Moreover, it was perpetrated as a bureaucratic process leaving loads of paper work. It explains why The Holocaust quickly turned out to be the most documented and partially for that very reason, the most discussed atrocity in history. At the forefront of this academic proliferation lies Hilberg’s magisterial work, The Destruction of European Jews. That he was offered the highest award by Germany while his book has not been published in Israel or in Hebrew does not tell us about the nature of his work but on the ways of the Memory of the Holocaust is handled in both the countries. If it has become an imperative for any major thinker or line of thinking to prove their explanatory powers by dealing with the Holocaust, such a thing is possible only with the solid factual account provided by Hilberg. As Norman Finkelstein remarked Hilberg’s work provides the psychological security for further thinking on the subject.

    Raul Hilberg died on 4th August, aged 81, in US where he was an emeritus professor of Political Science at the University of Vermont at the time of his death after teaching political science in the same university from 1956 to his retirement in 1991. He was born in Vienna to Jewish parents in 1926. He very closely escaped the fate of most Jews in Europe in Holocaust – including many of his close relatives- which he studied for more than half a century. He joined US military when he was 18 and came back to Europe as a soldier in one of the last US battalion to Europe towards the end of the Second World War in 1944. His battalion helped liberate Dachau Concentration Camp. When stationed in Munich came across a part of Hitler’s private library. After returning to US he embarked on the systematic study of Holocaust from 1948 after working in the archives that were used for Nuremburg Trial. It was in this trial that the guilt of the captured top Nazi leaders despite their arguments that they were only doing their ‘duty’ or ‘obeying orders’. If the Nuremburg trials established the individual guilt and culpability of the Nazi leaders, Hilberg was to show the criminality of a system in which the defendants were part. He enrolled for PhD in Columbia University in 1950, under Marxist political theorist Franz Neumann, himself a German Jew fled from Nazism and celebrated author of Behemoth (published in 1942), the first major structural study of Nazi state system.
    Franz Neumann suggested the role of German Bureaucracy in Holocaust as dissertation topic but Hilberg wanted to study the Holocaust as a bureaucratic process under the rubric of the destruction of European Jewry. A daring and distinguished scholar himself, Neumann warned Hilberg it would be the latter’s ‘funeral’ and told Hilberg that it would be difficult to obtain a teaching job. Neumann described Nazi regime as non-state with competing and conflicting arms of the government. This view turned out to be a lasting influence on Hilberg though led him to fundamentally different conclusions with a different focus. He also attended lectures by another Jewish German intellectual Hans Rosenberg whose views on Prussian Bureaucracy similarly influenced him. Neumann unfortunately died in a car accident and Hilberg had to continue his research without the research guide and he finally won the best dissertation award and took PhD in 1955. He took up teaching posts here and there and tried to publish his work. Publisher after publishers, including YadVashem, rejected his book, but finally an obscure Chicago publisher published it – only when a generous philanthropist agreed to buy more than a half of the copies of the book. One of the inexplicable things at that time was that Hanna Arendt, working for Princeton University Press, advised against publishing this book though her own major book Eichmann in Jerusalem was largely based on the findings of Hilberg’s book. He joined in the University of Vermont in 1956 and remained there till his retirement and associated with the university till death turning down many offers from other places.

    When Hilberg started his research, virtually there was nobody who was interested in studying Holocaust. Survivors wanted to overcome the memories of it
    , perpetrators wanted to hide it. Newly formed Jewish State did not yet start constructing the foundation myth of the Nation with the Holocaust as one of its central tenet. After the allied victory, none of the victors wanted further to probe the Nazism, least of all, the Holocaust. For Stalin-led Soviet Union led Socialist World it was just “open dictatorship of the most reactionary section of the monopoly capital in crisis in the face of proletarian struggles.” For the US led Post-War Capitalist World, it was one instance of undifferentiated Totalitarianism. In such world did Hilberg began his study without peers or a mentor taking notes manually in those pre-photocopying days with the unclassified and literally endless loads of documents and no previous work to serve as a model his own.

    The Holocaust
    Nazi regime was democratically elected and a strong Welfare State and enjoyed popular support till the very end. It lasted only for 12 years. Of which it committed most of its crimes in the last 6 years. The Holocaust or Judeocide began in late 1941. Many of the ‘Jewish’ victims were Jewish only by Nazi definition ( a person with two Jewish grand parents) laid out in Nuremburg Racial Laws of 19…. and they themselves did not thought so. Though 75% of all Jews in Europe were killed by Nazis, Jewish were only a third (5.1 million according to Hilberg’s conservative estimation) of the 20 million unarmed people Nazi regime killed in that brief time – 7 million Soviet Citizens, 3.5 million Soviet POWs, 3 million Poles, 250000 Disabled, 200,000 ethnic minorities, mostly Roma and Jehovah’s Witnesses, among
    others. It all happened in the context of Second World War. Hilberg chronicled mostly about the unique case of Jewish victims and the process of their destruction and its connections with the other crimes of Nazi Regime.
    Raul Hilberg’s findings about such a system are, meticulously and exhaustively documented, illuminating if deeply disturbing: In one of the most brutal wars in history, the Nazi attack on Soviet Union, there was Einsatzgruppen (mobile killing squads) which killed every Jew or soviet functionary they came across. They made the victims dig-up the grave on the edge of which they were stand to be shot at and thrown. Thus, between the summers of 1941 and 1942, Einsatzgruppen killed One million Jews alone in the Nazi occupied territory of Soviet Russia .As the Second World War unfolded, Nazis kept on running over country after the country with surprising rapidity, with it, ever larger number of Jews came under Nazi control. By the time Hitler assumed power, Jews in Germany were less than 1 %( 5, 50,000) of the total population. By the time Germany finally attacked USSR, the number of Jews accessible to Nazis rose to a staggering 90, 00,000. Though Nazis first thought of only removing the Jews by a range of deprivations and attacks to encourage emigration, growing number of Jews in their direct or indirect control led them to think of resettlement projects. Madagascar, eastern Poland and later, anticipating a quick victory over USSR, a region beyond Urals. Only after the failure of all such plans did they decide on the ‘Final Solution of Jewish Problem.’
    in 1941. Experience and success of Soviet Campaign played a decisive role in this. Death Camps were set up in occupied Eastern Europe , mainly in Poland. However, the open policy they implemented would not work in other parts of the Nazi dominated Europe. Some of them were in Nazi direct occupation, some
    were allies, and some were satellites. Nazi military, civilian, infrastructural reach across these areas was hardly uniform. In USSR territories Nazi killers went to the victims while in the rest of these places victims were to be brought to the killing centers. It required the cooperation of local police, civilian administration and, even more importantly, the victims!

    Jewish Councils

    Nazis revived the medieval practice of the Ghettos. And they instituted a novel form of self-governance, Jewish Councils, consisting of elders of Jewish community life elected by inhabitants of the Ghetto but subject to Nazi approval and worked as the link between caged Jewish population and the Nazis with the one-sided power-structure. Hilberg argued that without the Jewish Councils the orderly deportation of Jewish population to death camps would not have been possible. Hilberg dissects and describes this political innovation of Nazis using the long-standing history of Jewish community organization. He shows how these councils functioned as the extensions of Nazi death machinery which landed him in dispute with the official and pro-Zionist scholars. These councils had become effective, if reluctant collaborators of Nazis and persecutors of their own people and themselves. They precluded and weakened any resistance to grow in the Ghettos. It is notable that one of the very few exceptions to the Jewish ‘anticipatory compliance’ to Nazi demands, Warsaw Ghetto uprising took place only after the Jewish Council of the Ghetto collapsed. Thus he shows the near total annihilation of European Jewry as a participatory process. However, he did not see it as a moral failure but a perceptional one, unlike Hanna Arendt whose controversial Eichmann in Jerusalem; a Report on the Banality of Evil was based on Hilberg’s findings. The official guardians of Holocaust Memory disregarded Hilberg’s work by clubbing his with her work.

    He kept on revising and improving his first and the most significant work The Destruction of European Jewry he kept on revising it till the end of his career improving it with the subsequent research findings of his and others. He not only authored a classic, as Christopher Browning remarked, he even improved it. Still, he was not a one book man. His Perpetrators, Victims and Bystanders (1992) provided the basic schema for making sense of any Genocide. He showed that all sections of German society contributed to the Holocaust. For Hilberg, the Nazis including the very important ones were not fundamentally different from the rest of the Germans. However, he vehemently refuses to indict the German nation as a whole. Daniel Goldhagen’s thesis of ‘eliminationist Anti-semitism’ of Germans( Hitler’s Willing Executioners) which surprisingly attracted a philosopher of Habermas’s standing while playing to the gallery and created ripples in academia while being a best seller was finally silenced with the brief, clear rebuttal by Hilberg.
    As Norman Geras remarked, Hilberg’s shorter works are important too. His reviews require a specialized study. They are written not like an accomplished senior scholar’s good natured words or judgmental brief statements on the subsequent scholarship. They look for the minutest detail. With Hilberg around, no scholar working on an obscure topic or aspect of the Holocaust laboriously would feel non-recognition for too long. In this sense, he not only wrote a book that made Holocaust Studies a mature discipline at its very birth but also over saw its growth for a half century. His last book, The sources of Holocaust predictably broke a new ground in which the master of the archive wrote a book meant for the beginners of Holocaust research by summing up his unparalleled authority on the archives and documents of the Catastrophe.

    It is remarkable that a historian who describes himself as an ’empiricist’ with a firm belief in the unambiguity of the document came to be regarded as ‘the most important historian of anything’ in this century. Perhaps the old-fashioned virtue of ‘rigor of detail’ has not exhausted its illuminating powers after all. In the age of ‘postist’ denigration of the document all the while talking about genealogies, archaeologies and textualities he stands firmly in his belief in evidence, verification and worse, totality. His is not a case of a great work carried with a simplistic methodology. Bauman called him the greatest and based his own post-modernist interpretation of Holocaust on Hilberg’s findings. His defiant practice and advocacy of the objectivist historical reconstruction helped diffusing the force of some vulgar deconstructionisms and for the first time some leading postmodernist historians and historical thinkers were compelled to give clarification that their denial of facts was not in the ridiculous and dangerous sense of doubting the actuality of Holocaust.
    His style is so clear and simple and unpretentious that Arendt mistook it for simplemindedness. But most of the commentators complimented on his well-crafted prose. It is very difficult to take away a word or a line from his prose without damaging the meaning. He was repeatedly criticized for writing the history based on the murderer’s documents in which under the weight of numbers, statistics and footnotes drown the voice of the victims. Though the real grievance of the critics was he too honestly and closely documented the behavior of the victims. His clinical precision and clear, direct style were also criticized for lacking the feeling. His style is to demonstrate and not remonstrate. As Clandinnen rightly said, he trusts the reader’s capacity for judgment and with it the sufficiency of the evidence he provides. If passing judgments is emotional it is more so to suppress, particularly for somebody who spent a whole life studying the Holocaust in its debilitating details. Whatever be the logical status of the arguments against Hilberg’s method and style of presentation, they do not arise from such concerns related to methods of historical writing. It becomes very clear when we compare Hilberg’s reception with that of Primo Levi’s. Levi, a survivor of Auschwitz, whose books are acclaimed for the accuracy of detail and depth of insight, is hardly a favorite of Holocaust Deifiers. None of the charges leveled against Hilberg could be said about Levi yet he is also neglected by the official guardians of the Holocaust Memory.

    Hilberg was reputed to have described the ‘how’ of the Holocaust rather than the ‘why’ of it. But, it is much more easy for us imagine the possibility of a decision to dispense with an entire people and the power to do it but impossible to fully fathom how could anybody lead harmless and defenseless human beings to mass graves, gas chambers. In the case of Holocaust it is much difficult to understand the how. In fact, Hilberg’s findings not only clarify the process of the Genocide of Jews but also throw light on the question of what motivates Genocides. As a recent comparative study of major Genocides done by historical sociologist Michael Mann showed, Hilberg’s diagnosis was true for all other genocides too. There was no need for any genocidal intent for setting into the motion a process that result in Genocide.
    If there was one rival to Hilberg who can match, even surpass the influence of Hilberg it was not an individual. It was an institution, YadVashem (Holocaust Martyr’s and Heroes Remembrance Authority). From rejecting his manuscript for publication to bar him entry into its archive to sponsor studies to refute and correct his research to recent change of heart, it has come a long way. It organized a conference to honor Hilberg in 2002. A Hebrew version of his magnum opus is being prepared and soon to be published. Though it is undoubtedly a welcome change one fears if his insights about resistance could be tamed to serve the Zionist justification of Israel State’s crimes.
    Having said this, a couple of important issues that remain unresolved in Hilberg’s legacy is the question of resistance. The human beings even in the extreme situations carry their experience and cultural training is illuminating only when it sufficiently accounts for the fact, pointed by Berel Lang among others that if the compliance of the Jews in general and Jewish councils in particular was due to specific character of Jewish history and thought then what explains the 3.3 million Soviet POWs who too perished in the same way Jews did? Perhaps, the answer lies in the description offered by Primo Levi, an Italian chemist and Auschwitz Survivor. The physical exhaustion, hunger, labor, decease, filth, insecurity of even the barest minimum resources to remain alive made the prisoners of camps unable to resist and inescapably reduced to the narrowest immediacy until the very last moment.
    Primo Levi, the authentic Bearer of Witness, and Raul Hilberg, who lay bear the intricacies of the Holocaust, two entirely different thinkers working with different sources and concerns but remarkably similar in conclusions. Their work is, unlike most of the memorials and monuments proliferated for the exclusive Western consumption, the two greatest literary monuments we have for Holocaust Memory that cannot be desecrated or destroyed.


  3. Though your argument on reasonableness is a point to be noted, MR Balaji stated 50% as the upper limit while 27% is the reservation. One sets the max that can be given. Infact, the Court in balaji went through a lot of caution and attempted to remove arbitrariness in this area.
    The Court seems to be in a super active form now a days, which is bad for the doctrine of separation of powers; we see it in emergency decl, assemblies, contempt of court and now reservations.


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