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Friday, March 30, 2007

Supreme Court stays quota law for OBCs

T he Supreme Court on Thursday stayed the law providing for 27 per cent reservation for Other Backward Classes (OBCs) in higher education institutions such as the IITs and IIMs for 2007-08.

However, a Bench consisting of Justices Arijit Pasayat and Lokeshwar Singh Panta said the quota for the Scheduled Castes/Scheduled Tribes could be implemented.

The court passed the interim order on petitions challenging the constitutional validity of the Central Educational Institutions (Reservation in Admission) Act, 2006.

The court rejected the government argument that reservation was not anti-merit; and in the absence of caste data after 1931, there was no alternative to projecting the population proportion of socially and educationally backward classes and OBCs from the next best source — the latest available census of 1931.

Need for survey

Writing the order, Mr. Justice Pasayat said, "There is no dispute and, in fact, it was fairly accepted by Additional Solicitor General (ASG) Gopal Subramaniam that there is need for periodical identification of the backward citizens and for this purpose the need for a survey of the entire population on the basis of an acceptable mechanism. What may have been relevant in 1931 census may have some relevance, but it cannot be the determinative factor. Backwardness has to be based on objective factors whereas inadequacy has to factually exist."

The Bench said, "Though it is submitted that the number of seats available for the general category is not affected, that is really no answer to the broader issue. If there is possibility of increase in seats in the absence of reservation, it could have gone to the general category."

It said: "If the stand of the ASG is accepted that the exercise was not intended to be undertaken immediately and the increase would be staggered over a period of three years, it could not be explained as to why a firm data base could not be evolved first, so that the exercise could be undertaken thereafter. By increasing the number of seats for the purpose of reservation, unequals are treated as equals."

The concept of creamy layer could not prima facie be considered irrelevant, the Bench said: "It has also to be noted that nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status.

Stark reality

"Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you. This truth was recognised as an unhappy and disturbing situation and such situation was noted by this court as a stark reality in Indra Sawhney's case [Mandal case]."

The court said it needed no reiteration that the creamy layer rule was a necessary bargain between the competing ends of caste-based reservation and the principle of secularism. It was part of the constitutional scheme.

On the Government's contention that creamy layer rule would be applicable only to Article 16 (4) (providing reservation in appointment) and not to Article 15 (5) (making special provisions for advancement of educationally and socially backward classes), the Bench said this issue would have to be examined in detail to ascertain whether such a stand was based on any sound foundation.

"It would be desirable to keep in hold the operation of the Act in so far as it relates to Section 6 thereof for the OBCs category only."

"It would be permissible for the Union of India to initiate or continue the process, if any, for determining on a broad-based foundation `OBCs' notwithstanding the pendency of the cases before this court and without prejudice to the issues involved."

The Bench directed listing of the petitions for final hearing in August third week .

Cross Posted from The Hindu


Supreme Court: Reservation policy should not perpetuate backwardness

In a severe indictment of the Centre's quota policy, the Supreme Court on Thursday said, "The policy of reservation cannot and should not be intended to be permanent or perpetuate backwardness."

Staying implementation of the 27 per cent quota for Other Backward Classes (OBCs) in Central higher education institutions, a Bench consisting of Justices Arijit Pasayat and L.S. Panta said, "In Indra Sawhney's case [Mandal case], it appears that the underlying principles which have been identified are the identification of class, which was held to be affirmative by using castes as a proxy."

The Central Educational Institutions (Reservation in Admission) Act, 2006 was enacted following the 93rd Constitution Amendment empowering the Union Government and the States to enact laws to provide for reservation to the OBCs.


The petitioners assailed the law contending that identification of backwardness was an imperative requirement and could not be bypassed on any ipse dixit referring to outdated data based on the 1931 census. "The object of advancement of socially and educationally backward classes undisputedly brings in the concept of creamy layer. If the character of an institution of superspeciality of national importance is permitted to be affected in the manner sought to be done, it would be counter-productive and that would affect the quality of education."

The Centre justified the law saying "the reservation policy is a means of integrating the society disintegrated over the centuries by the age-old caste system. The lists of OBCs identified on the basis of social and educational backwardness have been determined."

Rejecting the Centre's argument, the Bench said: "The state was constitutionally empowered to enact affirmative action measures for backward classes. Differentiation or classifications for special preference must not be unduly unfair to the persons left out of the favoured groups."

The Bench said, "Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but also on the presence of abilities. Where, therefore, there is inequality in fact, legal equality always tends to accentuate it."

"Limited in time"

Quoting a U.S. Supreme Court decision, the judges said, "Race conscious admission policies must be limited in time and that with the efflux of time the use of preferences would no longer be necessary."

The Bench said, "Equality as a fundamental substantive norm is a characteristic feature of many democratic Constitutions. It remains to be examined whether a different form of preferential treatment other than quotas could be employed as at some stage an affirmative action concept can be focussed in this direction also. Though it is submitted that the number of seats available for the general category is not affected, that is really no answer to the broader issue."

Baseless figure

The Bench agreed with the petitioners' contention that the baseless figure of 27 per cent could not be pressed into service for introducing a statute, which had such wide ramifications. Further, they said inclusion in the lists of backward classes could not be mechanic and could not be done without adequate relevant data.

The judges quoted a recent five-judge Constitution Bench verdict which said, "We reiterate that the ceiling limit of 50 per cent, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements, without which the structure of equality of opportunity in Article 16 would collapse. The state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely."

Cross Posted from The Hindu


YFE hails stay on OBC reservations

The Youth for Equality, a student grouping which spearheaded the anti-quota stir, today welcomed the Supreme Court stay on a central law providing 27 per cent reservation for OBCs in elite educational institutions.

"It is a victory of the people and a victory for the common man against politicians, who had tried to divide the society on the basis of caste," said, Kumar Harsh, president of AIIMS Residents Doctors Association,

He said the Supreme Court stay was the beginning of a process for scrapping of the controversial law that aimed at providing reservation for OBCs in institutions like IITs and IIMs.

"The politicians wanted to create caste-based vote banks. This is definitely a setback to them," Harsh, who is also the spokesperson of the Youth For Equality, said in his reaction to the SC stay.

He also demanded a thorough review of the reservation policy in a scientific manner. "There should a criteria. It could be economic or anything else, but certainly not caste," he added.

The Youth For Equality had gained prominence after its sustained and at times violent protests against caste-based reservations in the middle of last year after the Centre announced its decision to provide reservation for the OBCs.

Ordering a stay on implementation of the central law, the court held that the 1931 census could not be a determinative factor for identifying the OBCs for the purpose of providing reservation to them.

Cross posted from The Economic Times