New Delhi: In a severe setback to pro-reservationists, the Supreme Court on 29 March stayed the controversial provision in the parliamentary law enabling 27% quota for Backward Classes in elite central educational institutions like IITs, AIIMS and IIMs.
It held that data based on 76-year-old census can’t be the determinative factor for the affirmative action.
“What may have been relevant in 1931 census may have some relevance but cannot be the determinative factor,” a Bench comprising Justice Arijit Pasayat and Justice L.S. Panta said disagreeing with Centre’s mode of selecting data for providing quota under the Central Educational Institution (Reservation in Admission) Act of 2006, to the OBCs.
Today’s order may effectively put into jeopardy government’s plan to implement the new quota regime in the elite institutions and central universities from the coming academic year.
The judgement came under immediate attack from pro-reservation parties which called it “retrograde, uncalled for and unfortunate” while those opposed to it hailed the verdict. HRD Minister Arjun Singh, the brain behind the law, said Parliament will stick to the measure.
Disposing of the petitions against the Act passed in December last, the court said it will examine on merits the Constitutional validity of the Act in the third week of August. However, it allowed the Government to initiate the process for determining on a broad-based foundation “Other Backward Classes”.
The Centre had maintained that in the absence of data
after 1931 there was no alternative but to project population proportion of socially and educationally backward classes and OBCs from the next best source, i.e. latest available 1931 census.
Holding that Government failed to explain as to why a firm data base could not be evolved first, the Bench kept on hold the operation of the relevant provision of the Act dealing with reservation for the OBCs.
It, however, clarified that the benefit of reservation for the Scheduled Castes and Scheduled Tribes could not be withheld and the Centre can go ahead with the identification process to determine the OBCs.
“...it would be desirable to keep on hold the operation of the Act so far as it relates to Section 6 thereof for the OBCs category only. We make it clear that we are not staying operation of the statute, particularly, Section 6 so far as the SC and ST candidates are concerned,” Justice Pasayat, writing the judgment for the Bench, said.
The Court said while dealing with the reservation, the concept of “creamy layer” becomes important as the Centre has maintained that it was applicable to only Article 16 (4) and not Article 15 (5) of the Constitution.
While Article 16 (4) empowers the State to make provisions for reservations for any backward class not adequately represented in the government jobs, Article 15 (5) enables State to provide quota for socially and educationally backward classes.
Observing that the concept of creamy layer cannot prima facie be considered to be irrelevant, the court said “it, therefore, needs no reiteration that the creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism. It is a part of Constitutional scheme”.
However, the Bench noted with pain that “nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status”.
“Nowhere else in the world is there competition to assert backwardness and then to claim we are more backward than you,” the Bench observed.
Although the State was constitutionally empowered to enact affirmative action measures for backward classes, the Court said “differentiation or classification for special preference must not be unduly unfair for the persons left out of the favoured groups”.
Holding that the apex court in several instances focused on the question as to whether Article 15 (4) and 16 (4) are a facet of equality or a derogation from it, 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 on the presence of abilities. Where, therefore, there is inequality in fact, legal equality always tends to accentuate it,” the court said.
Taking note of the contention of anti-quota propagandist that the policy of reservation cannot be and should not be intended to be permanent or perpetuate backwardness, the Bench said, “it remains to be examined as to whether a different form of preferential treatment other than quotas could be employed as at some stage an affirmative action concept can be focused in this direction also”.
The court brushed aside the argument of the Centre that the number of seats available for General Category students was not affected.
“If there is possibility of increase in seats in the absence of reservation it could have gone to the General category,” the Bench observed and questioned the intention of the Government to implement the policy without data in place.
“If the stand of Additional Solicitor General Gopal Subramanian was 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 explained as to why a firm data base could not be evolved first so that the exercise could be undertaken thereafter,” the Court said.
“By increasing the number of seats for the purpose of reservation unequals are treated as equals,” the Bench observed.
Meira Kumar declines to comment
Minister for Social Justice and Empowerment Meira Kumar declined to comment on the Supreme Court order staying 27% reservation for OBCs saying she needed detailed study of the order before making any statement.
“Since our Ministry is the main Ministry with regard to the issue of OBC reservation, we would like to study it in detail before making any comment on the Supreme Court order,” she said.
Contrary to this, her senior ministerial colleague Arjun Singh has rejected that the Apex Court’s order on reservation was a setback and said the government will take constitutional and legal steps to ensure that the law is valid.
Medical professionals hail SC verdict
Medical professionals and students fighting against reservation hailed the Supreme Court’s stay on a central legislation providing quota for OBCs in elite educational institutions.
“It is a fantastic news and today’s interim stay only shows that the apex court is not allowing the politicians to take the people of the country for a ride on the basis of caste and creed,” professionals and students said.
In its interim order staying the Central Educational Institution (Reservation in Admission) Act of 2006, the apex court held that the 1931 census could not be a determinative factor for identifying the OBCs for the purpose of providing quota.
Pro-quota parties attack SC order
Pro-reservation parties attacked the Supreme Court judgement staying reservation for backward classes in elite educational institutions and sought Parliament’s “intervention” while the Government made it clear that Parliament will stick to the law.
Tamil Nadu Chief Minister M Karunanidhi, whose state is a pioneer in the affirmative action and has reservations up to 74%, expressed shock over the judgement.
However, Congress and the BJP were ambiguous and not forthcoming in their reactions.
UPA partner CPI came out with the strongest reaction calling the judgement “retrograde” which it said would not help in implementation of policies to ensure social justice and equality.