Observing that the governments 4.5 per cent sub-quota carved out of the 27 per cent OBC reservation in central educational institutions has no constitutional or statutory support,the Supreme Court refused to stay the Andhra Pradesh High Court order quashing the same for the second time in three days.
The apex court did not prima facie accept the Centres argument that the sub-quota was justified and based on empirical data collected by the government. Instead it admitted the Centres petition and asked it on Wednesday to produce details on how the figure of 4.5 per cent was arrived at.
What particularly irked the Bench of Justices K S Radhakrishnan and J S Khehar was the governments Office Memorandum of December 22,2011,that described the sub-quota for religious minorities.
The problem is with the Office Memorandum saying 4.5 sub quota for socially and educationally backward communities belonging to religious minorities. Twenty-seven per cent has constitutional support,but the 4.5 per cent sub-quota does not, Justice Radhakrishnan observed in the hearing.
The Bench said that such categorisation apparently based on religious identities was violative of the Constitution. First of all,can you make a classification on the basis of religion? The Constitution explicitly says that reservation must be based on social,educational and economic backwardness, the court told Additional Solicitor General Gourab Banerji.
The December 2011 Memorandum was announced by the Centre ahead of the Assembly elections in five states. The high court had quashed the sub-quota last week,criticising the government for the casual manner in which it had acted on a sensitive issue.
In his arguments,Banerji took the court through the statistics of the IIT admissions. The ASG pointed out that even the 4.5 sub quota is not being filled as only 325 students have qualified out of a total 443 seats in the category. But 4.5 sub-quota seems to be 20 per cent of the total OBC quota itself. So will it not affect other OBCs? the Bench asked the government.
The ASG then went on to narrate the entire history of reservation,starting with the Office Memorandum implementing the Mandal Commission report of April 1990,and pointed to the Sachar and Ranganath Mishra committees reports. He said the Centres findings were rooted in the empirical data collected by the two committees.
Banerji also said that all religious minorities like Buddhists and Zoroastrians were not in the list of the 4.5 per cent sub-quota,and that it is granted to the lowest ranks of Muslims or converts to Christianity. The first cut-off identifying the OBCs within the minorities for sub-quota was that they have to be socially and educationally backward and they have to be religious minorities,he said.
Thats the difficulty and that is the point. We can understand if it is across the board. How you made the calculation that this particular population is poorer than the rest (of the OBCs)? the Bench retorted.
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