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Friday, March 30, 2007

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.

"Counter-productive"


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identification of backwardness was an imperative requirement and could not be bypassed on any ipse dixit referring to outdated data based on the 1931 census.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

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