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Home > News > Columnists > Arvind Lavakare

They didn't encroach the 'reserved' area!

May 08, 2007

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Reservation issue: The Complete Coverage
Our Lok Sabha Speaker has alleged that our highest judiciary has been encroaching on the Executive's preserve of running the country according to the law passed by Parliament.

He has been joined by the DMK supreme leader in Tamil Nadu. Our prime minister too has lent support with his grievance at the judiciary's 'overreach'. And the whole bunch of legislators in New Delhi have echoed these noises. All because a division bench of the Supreme Court stopped them in March from going ahead with their scheme of reserving 27 per cent of the seats in certain higher educational institutions for the OBCs.

To those who have carefully read the relevant judgment, all this anger is a lot of hot air -- as we will soon see.

Start with the abbreviation OBC. What is its full form? Chances are that some Parliamentarians believe the short form to mean 'Other Backward Castes' when it actually means 'Other Backward Classes' (whatever the commission of 1953 and then the Mandal Commission report of 1980 may have thought of 'classes' being the same as 'castes'.)

Next, take the law that sought to give the controversial 27 per cent benefit to the OBC. Called the Central Educational Institutions (Reservation in Admission) Act, 2006 (made possible by amending our Constitution to add the enabling clause 5 to Article 15 that prohibits 'discrimination on grounds of religion, race, caste, sex or place of birth'), some MPs may believe the Supreme Court has thrown out the entire law. Wrong.

What the Supreme Court ruled was 'It would be desirable to keep in 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 Scheduled Castes and Scheduled Tribes candidates are concerned.'

Just why did the apex court withhold the OBC provision? Here's why:

1. 'What may have been relevant in 1931 census may have some relevance but cannot be the determinative factor.' So said the two judges.

The reference was to the fact that the first Backward Classes Commission, appointed in 1953, 'drew up a list of 2,399 so-called Other Backward Castes (OBC), which made up 32% of Indian society on the basis of the 1931 census.' (Report of the Backward Classes Commission, Volume I, Government of India, Delhi, 1955).

The two judges pronounced that, 'There is no dispute and in fact it was fairly accepted by learned Additional Solicitor General that there is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism.'

They further said 'Inclusion of castes in the list of backward classes cannot be mechanical and cannot be done without adequate relevant data.'

It may be noted in this context that Social Justice and Empowerment (SJ&E) ministry's dossier on the OBC population points out that most of the states do not have any authentic data to justify the quantum of 27 per cent quota in the elite academic institutions.

That is why a source in the SJ&E ministry said. 'The Centre will have to depend upon the National Sample Survey Organisation (NSSO)'s latest estimation of OBC population of 41.1 per cent.' (The Pioneer, April 16, 2007).

This 41.1 per cent is against the Mandal Commission's 'guestimate' of 52 per cent from which a reservation of 27 per cent was claimed for no other reason than 'to be spared the ire of the judges, who, since the Balaji decision, were concerned with keeping quota totals below 50%.' (Report of the Backward Classes Commission, First Part, Government of India, New Delhi, 1980.)

The judges approvingly cited the view expressed in para 9 of Indra Sawhney (II) [2000 (1) SCC 168] that 'Inclusion of castes in the list of backward classes cannot be mechanical and cannot be done without adequate relevant data', and went on to say that, 'Differentiation or classifications for special preference must not be unduly unfair for the persons left out of the favoured groups.'

Recognising the injury caused by reservation to the 'general' category, they said, 'This Court has in several instances focused on the question as to whether Articles 15(4) and 16(4) are a facet of equality or a derogation from it.' [Articles 15(4) and 16(4) are the ones that have sanctioned the practice of reservations in our Constitution.)

2. The concept of creamy layer cannot prima facie be considered to be irrelevant.

The exclusion of the 'creamy layer' concept from the law proposing 27 per cent reservation for OBCs in certain educational institutions was prima facie unacceptable to the two-judge bench of the Supreme Court. It said it wanted to examine in detail 'the stand of Union of India that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) is based on any sound foundation.'

In support of this view, the bench said, 'Recently, a Constitution Bench of this Court in M Nagaraj and Others v Union of India and Others has reaffirmed the importance of the creamy layer principle in the scheme of equality under the Constitution. This Court held that the creamy layer principle was one of the important limits on State power under the Equality Clause enshrined under Articles 14 and 16 and any violation of dilution of the same would render the State action invalid.'

It further said, 'In Indra Sawhney this Court... accepted caste as determinant of backwardness and yet it struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer. This Court, thus, has categorically laid down the law that determination of creamy layer is a part of the constitutional scheme. 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.'

3. OBC reservation not affecting seats available for general category is no answer.

The two judges of the Supreme Court held that 'If there is possibility of increase in seats in the absence of reservation it could have gone to the general category. If the stand of learned Additional Solicitor General is accepted that the exercise was not intended to be undertaken immediately and the increase would be staggered over a period of 3 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.'

So there, you have it. When, in March, the Supreme Court stayed the reservation of 27 per cent seats for OBCs in certain educational institutions, it was not at all encroaching on the Executive's domain. It was, instead, educating our MPs on certain principles such as equality enshrined in our Constitution.

Arvind Lavakare