Monday, April 21, 2008

SC judgement in OBC quota case

The SC judgement in the OBC quota case is seen as a politically correct judgement- it allows quotas (which will please the reservationists) but disallows the creamylayer, which will please opponents of quotas.

Well, that may well be the outcome but it would not be correct to suggest that was the intention. A careful reading of the judgements suggests that it is based on a careful interpretation of the Constitution and the formidable case law that has accumulated on reservations. I read the judgements and was left with a sense of admiration for the fundamental justness of the verdict. My comments on a couple of legal aspects and the implications of the judgement are there in my ET column, Expect quota battles to continue.

The thirteen key legal questions and the answers to these are summarised in Chief Justice Balakrishnan's judgement. I reproduce this portion:

Questions:

1. Whether the Ninety-Third Amendment of the Constitution is
against the "basic structure" of the Constitution?

The Constitution (Ninety-Third Amendment) Act, 2005 does
not violate the "basic structure" of the Constitution so far as it
relates to the state maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety-Third
Amendment) Act, 2005 would be constitutionally valid or not so far
as "private unaided" educational institutions are concerned, is left
open to be decided in an appropriate case. (Paragraph 79)

2. Whether Articles 15(4) and 15(5) are mutually contradictory,
hence Article 15(5) is to be held ultra vires?

Article 15(5) is constitutionally valid and Articles 15(4) and
15(5) are not mutually contradictory. (Paragraph 100)

3. Whether exclusion of minority educational institutions from
Article 15(5) is violative of Article 14 of Constitution?

Exclusion of minority educational institutions from Article
15(5) is not violative of Article 14 of the Constitution as the minority
educational institutions, by themselves, are a separate class and
their rights are protected by other constitutional provisions.
(Paragraph 102)

4. Whether the Constitutional Amendment followed the
procedure prescribed under Article 368 of the Constitution?

The Ninety-Third Amendment of the Constitution does not
affect the executive power of the State under Article 162 of the
Constitution and hence, procedure prescribed under Proviso to
Article 368(2) is not required to be followed.
(Paragraph 103)

5. Whether the Act 5 of 2007 is constitutionally invalid in view of
definition of "Backward Class" and whether the identification
of such "Backward Class" based on "caste" is
constitutionally valid?

Identification of "backward class" is not done solely based on
caste. Other parameters are followed in identifying the backward
class. Therefore, Act 5 of 2007 is not invalid for this reason.
(Paragraph 142)

6. Whether "Creamy Layer" is to be excluded from SEBCs?

"Creamy Layer" is to be excluded from SEBCs. The
identification of SEBCs will not be complete and without the
exclusion of "creamy layer" such identification may not be valid
under Article 15(1) of the Constitution. (Paragraph 152)

7. What should be the para-meters for determining the "creamy
layer" group?

The parameters contained in the Office Memorandum issued
by the Government of India, Ministry of Personnel, Public
Grievances and Pensions (Department of Personnel and Training)
on 08.09.1993 may be applied. And the definition of "Other
Backward Classes" under Section 2(g) of the Act 5 of 2007 should
be deemed to mean class or classes of citizens who are socially
and educationally backward, and so determined by the Central
Government; and if the determination is with reference to caste,
then the backward class shall be after excluding the creamy layer.
(Paragraphs 153 and 155)

8. Whether the "creamy layer" principle is applicable to
Scheduled Tribes and Scheduled Castes?

"Creamy Layer" principle is not applicable to Scheduled
Castes and Scheduled Tribes. (Paragraph 163)

9. Whether the principles laid down by the United States
Supreme Court for affirmative action such as "suspect
legislation", "strict scrutiny" and "compelling State
necessity" are applicable to principles of reservation or
other affirmative action contemplated under Article 15(5) of
the Constitution?

The principles laid down by the United States Supreme
Court such as "suspect legislation", "strict scrutiny" and
"compelling State necessity" are not applicable for challenging the
validity of Act 5 of 2007 or reservations or other affirmative action
contemplated under Article 15(5) of the Constitution.
(Paragraphs 184)

10. Whether delegation of power to the Union Government to
determine as to who shall be the backward class is
constitutionally valid?

The delegation of power to the Union Government to
determine as to who shall be the "other backward classes" is not
excessive delegation. Such delegation is constitutionally valid.
(Paragraph 186)

11. Whether the Act is invalid as there is no time limit prescribed
for its operation and no periodical review is contemplated?

The Act 5 of 2007 is not invalid for the reason that there is
no time limit prescribed for its operation, but a review can be made
after a period of 10 years. (Paragraph 187)

12. What shall be the educational standard to be prescribed to
find out whether any class is educationally backward?
The contention that educational standard of matriculation or
(10+2) should be the benchmark to find out whether any class is
educationally backward is rejected. (Paragraph 189)

13. Whether the quantum of reservation provided for in the Act is
valid and whether 27% of seats for SEBC was required to be
reserved?

27% of seats for other backward classes is not illegal and
the Parliament must be deemed to have taken into consideration
all relevant circumstances when fixing the 27% reservation.
(Paragraph 193)

4 comments:

Priya said...

The article is a reproduction of the judgement with no analysis! What is the purpose? IIM guys lack courage to take on the system!

T T Ram Mohan said...

Priya, you seem to have my missed the link to my ET column- I have stated my own views quite clearly.

-TTR

vinayak said...

here our organaisation is working for obc comunity in India and around the World. We have experianced man power to comunicate the issues which is going the present issues.
By National Working President Mr Vinayank Yadav.

vinayak said...

here our organaisation is working for obc comunity in India and around the World. We have experianced man power to comunicate the issues which is going the present issues.
By National Working President Mr Vinayank Yadav.