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Prologue
At the very outset, I would like to bring to the notice of the
reader that by virtue of being a student of law, I intend to
discuss here not the politics of reservation for OBCs, but the
subtle legalities involved in the interim order given by the
Supreme Court in staying the operation of s.6 of the Central
Educational Institutions (Reservation in Admission) Act, 2006.
This is an attempt to identify the key areas where law comes into
play so as to uphold the cardinal constitutional principles in
identifying and fixing the appropriate quota of reservation for
backward classes.
Introduction
- A Peep into Facts
Earlier last year, the Parliament had effected an amendment to
Art. 15 adding cl.(5) which seeks to promote, as part of the
policy of protective discrimination, the educational advancement
of socially and educationally backward classes of citizens, the
SCs and STs through special provisions relating to the admission
of students from these categories in all educational institutions.
It is to be
noted at this juncture, that the Central Educational Institutions
(Reservation in Admission) Act, 2006 is a significant legislative
measure in the sense that it is for the first time that the Indian
Parliament has recognised a law giving effect to the reservation
of seats in educational institutions as an expedient measure of
adhering to the constitutional provisions. Art. 46 is to be
considered in the forefront in this regard as it mandates the
State to promote the educational and economic interests of the
weaker sections, particularly the SCs and STs, protecting them
from social injustice and exploitation.
The Central
Government sought to give full effect to s.3 of the Act which
reserves apart from 15% & 7.5% of the seats in admission for SCs &
STs respectively, a percentage equal to 27% for other backward
classes. Apart from that, the Act under s.5 requires an increase
in the number of seats above its annual permitted strength (for
the academic session preceding the date of coming into force of
the Act).
Issues Addressed in the Interim Order
The Bench, comprising of Justices Arijit Pasayat and Lokeshwar
Singh Panta, in its preliminary ruling, addressed the issues not
only pertaining to legal aspects, but dealt with social factors
also.Some of the issues pertained to:
1. Whether the reservation granted to OBCs is arbitrary and ultra
vires the provisions of Constitution?
2. Whether the method adopted to define and calculate the
population figure of OBCs is appropriate?
3. Whether the benefit of reservation can be extended to the
creamy-layer?
1. Reservation per se for OBCs is valid
Union of India has asserted that reservation whether in employment
or in education is not violative of the basic structure or
equality code of the Constitution. The provisions in the
Constitution acknowledge that reservation is an integral part of
the principle of equality where inequality exists. The Court noted
that the issues needed deeper consideration and reserved its
opinion for the final judgment.It is submitted here that the Court
is most likely to take a view in consonance with the decision in
M.R. Balaji v. State of Mysore, stating that amongst the decisive
factors for backwardness, caste alone cannot be taken to be the
sole and dominant criterion despite the presence of other relevant
factors. A deviation from this view is permissible only when the
caste as a whole is both socially and
educationally backward as held in
P.Rajendran v. State of Madras.
2. Method
of determination of OBC population is Invalid
The subject matter of challenge was not only the policy of
granting 27% reservation as being arbitrary and ultra vires the
constitution, but also the method adopted to define and calculate
the population figure of OBCs in the country. In this regard,
Court held that it was not appropriate to give effect to the
Constitutional provisions for affirmative action on the basis of
fictitious data and assumptions. Therefore, the list of Backward
Classes as given in s.2(c) of the Act was held as based on the
outdated census of 1931 because since then, no there was no caste
wise enumeration of the population. Moreover, the figures provided
by NSSO & NHFS placed the OBC population at 41% as opposed to the
Mandal estimate being 52%.One has to draw his attention to the
fact that there is a need for periodic identification of the
backward citizens. One of the means through which this could be
done could be a survey of the entire population on the basis of an
acceptable mechanism. This is because as held in the case of
State of AP v.
USV Balram,
the Government should not act on the assumption that once a caste
is considered backward, it should continue to be backward for all
times. This in turn means that if once a class appears to have
reached a stage of progress from which it can be inferred that no
further protection is necessary, the State ought to review and
revise the list of backward classes. Thus, this is may be a
significant reason as to why the Court refused to go by the Mandal
estimate of the population of OBCs to be 52%.
3.
Exclusion of Creamy-layer
Shifting from the OBC estimate, another disputed area revolved
around the inclusion of the creamy-layer within the purview of
reservation under the Act. It was rightly held by the Court that
the non-exclusion of creamy-layer would have an effect on the
invalidity of the statute. The case of
M.Nagaraj &
Ors. v. Union of India
serves as a guiding light wherein it was held that the creamy
layer rule is a necessary bargain between the competing ends of
caste based reservations and the principle of secularism which is
a part of the constitutional scheme. Hence, the extension of
reservation benefits to creamy layer is antithetical to the very
object of advancement of socially and educationally backward
classes.
It is
submitted that, though this is a principle for the Court to
examine at length in its final judgment, the Union of India is
wrong in its stand that the creamy-layer rule is applicable only
to Art. 16(4) and not to Art. 15(5). This is based on the
hypothesis that the chances of adequate number of OBC candidates
filling the entire quota of 27% would not be possible in the event
of exclusion of creamy layer. If that had been the case, then the
Act should not have intended to increase the number of seats or
even for that sake fixed such a high percentage for OBC
reservation.
Significance of the Interim Order
The Interim Order has disregarded the Government's contentions not
on blatant, but on certain valid grounds. The Supreme Court has
clearly identified the crux of the Act, which needs to be
fine-tuned to bring it in line with the desired constitutional
mandate of reservation for backward classes.
While we wait
for the final judgment of the case (scheduled for hearing in
August), it would be interesting to predict that firstly, Supreme
Court is likely to reiterate that caste alone cannot be made the
sole determinant factor in ascertaining backwardness. Secondly, a
caste once backward will not give rise to a presumption that it is
will always be backward. On the other hand, a periodic review is
to be done from time to time so as to exclude those who have
attained the status of socially advanced persons i.e. in the sense
that they have a higher level of income or are economically more
sound than others in the caste. Another relevant factor to be
noted is that the Supreme Court has become vigilant in its
approach towards the attitude of the Central Government to gain
vote bank
and has emphasized that the shift should be towards
talent bank.
It has also stepped in to call a reminder that the policy of
reservation should not be intended to be permanent or perpetuate
backwardness.
Therefore, it
is submitted that from a rational lawman's perspective, the higher
judiciary has reiterated the considerations that have to be borne
in mind while approaching the concept of reservation.
Ashoka
Kumar Thakur Vs. Union of India and Ors
(Complete Text judgment)
End Notes:
1. Art 15(5) Nothing in this Article or in sub-clause (g)
of clause (1) of Art.19 shall prevent the State from making any
special provision, by law, for the advancement of any socially 7
educationally backward classes of citizens or for SCs or STs in so
far as such special provisions relate to their admission to
educational institutions including private educational
institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in clause (1) of
Art.30.
2. s.6 of the Central Educational Institutions (Reservation
in Admission) Act, 2006 requires the educational institutions
shall take all steps required to give effect to the provisions of
s.3, 4 and 5 of the Act for the academic session commencing in
2007.
3. Balaji v. The State of Mysore [1963] Suppl. 1 S.C.R.
439.
4. P.Rajendran v. State of Madras MANU/SC/0025/1968.
5. State of AP v. USV Balram AIR 1972 SC1375.
6. M.Nagaraj & Ors. v. Union of India MANU/SC/4560/2006.
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The
Interim Order In Ashoka Kumar Thakur Case An Eye Opener
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The
author can be reached at: sangeethamugunthan@legalserviceindia.com /
