Questioning the relevance of the 1931 census as the basis for identifying backward classes, in a major rebuff to the UPA and setting the stage for another round of confrontation between the House and the Bench, the Supreme Court today directed that the new law enabling 27% OBC quotas in Central higher-education institutions, including IITs and IIMs, be kept on hold. While it did not oppose the concept of OBC reservation — the next hearing is in August — a two-judge bench, headed by Justice Dr Arijit Pasayat and including Justice Lokeshwar Singh Panta, emphasized in an interim order that there is a need for “periodical identification” of who constitute backward classes. It cited the Indira Sawhney ruling to reinforce this point. In that verdict, the court had said that “inclusion of castes in backward classed should be done with adequate relevant data.” “What may have been relevant in 1931 census may have some relevance but cannot be a determinative factor,” the judges said. Adding that while they had stayed the order on the OBC quotas, “it would be permissible for the Union of India to initiate or continue process, if any, for determining on a broad based foundation, (the definition) of Other Backward Classes.” However, the judges clarified that the benefit of reservation for the Scheduled Castes and Scheduled Tribes could not be withheld. While the Centre argued that the providing reservation to OBCs was not meant for immediate implementation — it was scheduled to begin in the coming academic year but would be staggered over three years — the Bench underlined the “undue” haste by not coming out with a determinable data. “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,” the judges said. Additional Solicitor General Gopal Subramanium’s argument that seats would be increased to protect the interests of general category candidates failed to impress the Court. Said the Bench: “By increasing the number of seats for the purpose of reservation unequals are treated as equals.” Various organisations like the Residents Doctor Association, Youth For Equality, a forum of students and several others including educationists, had opposed the recently enacted legislation enabling 27 per cent OBC quotas. On the basis that it would lead to a divide in the country on a caste basis, the petitioners had argued, “A time has come to replace vote bank scenario with talent bank as product of the Act’s implementation would be intellectual pygmies rather than normal, intellectual sound students presently passing out.” Writing for the bench, Justice Pasayat said that the concept of “creamy layer” was part of the Constitutional scheme. “It needs no reiteration that creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism,” the court said. At the same time, raising a rather significant question on the reservation policy, the court observed, “It needs to be examined as to whether a different form of preferential treatment other than quotas could be employed as at some stage some affirmative action concept can be focused in this direction also.” The reasoning that the number of general category seats will not be affected is not an answer to the broader issue, the judges said. Adding that the reservation policy “cannot be and should not be intended to be permanent or perpetuate backwardness.” Clarifying that the “State was constitutionally empowered to enact affirmative action measures for backward classes,” the judges added, “Differentiation or classifications for special preference must not be unduly unfair for the persons left out of the favoured groups.” What the SC said: • Where is the updated database for OBCs? • Creamy layer is necessary • More general candidates would have got in if you had more seats without quotas • Is there a way other than quotas? • Equality of opportunity depends not only on absence of disabilities but on presence of abilities What the Govt is likely to do • Go back to Bench and ask for review or a vacation of the stay • Will argue that two-judge Bench can’t over-rule nine-judge ruling in the landmark Sawhney case. • If OBC list is OK for jobs, why not for college seats? • Will cite earlier ruling that it is Govt’s right to decide on policy for backward classes, not court’s • Call all-party meeting to show political consensus Options in sync with SC order • Go for comprehensive caste Census • Or Define backward classes via criteria other than caste, use income or education level of parent • Exclude creamy layer
