Saturday, July 31, 2010

SC Upholds 27 Per Cent For OBCs In IITs, IIMs

SC Clears 27 Per Cent OBC quota, excludes 'creamy layer'

Giving a big push to reservation policy, the Supreme Court today upheld the controversial law providing 27 per cent quota for other backward classes (OBCs) in IITs, IIMs and other Central educational institutions but excluded the "creamy layer" from its ambit.

With the court clearing the Central Educational Institutions (Reservation in Admission) Act, 2006 the IITs, IIMs and other Central educational institutions will have to provide 27 per cent quota for OBCs for the 2008-09 academic session.

The five-judge constitution bench headed by Chief Justice K. G. Balakrishnan unanimously held that "creamy layer" must be excluded from the socially and educationally backward classes (SEBCs) and there should be a periodic review after five years on continuing with the quota.

The Bench upheld the validity of the Constitution (93rd Amendment) Act 2005 empowering the Centre to come out with the special law for OBC reservation in educational institutions of higher learning.

The members of the Bench, which delivered four separate judgements, were unanimous that the 93rd amendment and the 2006 legislation providing for the quota were "not violative of the basic structure of the Constitution".

The only divergent view was relating to the constitutional validity of the 93rd amendment in relation with private unaided institutions, with four judges leaving the issue open since none of those institutions had approached the court.

However, Justice Dalveer Bhandari held that "imposing reservation on unaided institution violates the basic structure by stripping citizens of their fundamental rights under Article 19 (1) (g) to carry on an occupation".

Justifying the quota policy, the Chief Justice observed that "reservation is one of the many tools that are used to preserve and promote the essence of equality so that disadvantaged groups can be brought to the forefront of civil life"... The plea of the petitioner that the legislation itself was intended to please a section of the community as part of the vote catching mechanism is not a legally acceptable plea and it is only to be rejected," Justice Balakrishnan said.

The Bench rejected the contention of the anti-quota petitioners contending that identification of SEBCs for reservation on the basis of castes was not allowed in the Constitution which seeks to achieve casteless and classless society.

"Identification of backward class is not done solely based on caste. Other parameters are followed in identifying the backward class. Therefore the Act is not invalid for this reason," the Chief Justice said.

"Determination of backward class cannot be exclusively based on caste. Poverty, social backwardness, economic backwardness, all are criteria for determination of backwardness," Justice Balakrishnan said and his view was shared by Justice R. V. Raveendran.

On the same issue Justices Arijit Pasayat and C. K. Thakker said that determination of backward class can be done by excluding the creamy layer for which necessary data must be obtained by the Centre and the State government.

"So far as determination of backward classes is concerned, a notification should be issued by the Centre. Such notification is open to challenge on the ground of wrongful exclusion and inclusion," Justice Pasayat said.

Emphasising that proper identification of OBCs was required, Justice Pasayat said the Commission set up pursuant to the directions of this court in Indra Sawhney case (Mandal case) has to work more effectively and not merely decide applications for inclusions or exclusions of castes in quota list. The Bench, which was unanimous that quantum of 27 per cent reservation for OBC under the Act was valid, said for applying the parameter for identification of SEBC, the creamy layer has to be excluded as per the office memorandum of September 8, 1993 which included wards of persons holding Constitutional posts, government officials under various categories.

Justice Bhandari urged the government to exclude the children of former and present MPs and MLAs from taking the benefit of OBC reservation by amending the office memorandum.

The judges were clear that the "creamy layer" concept was not applicable in the case of Scheduled Castes and Scheduled Tribe.

The apex court held that the delegation of power to the Centre to determine OBCs was valid and rejected the contention of the anti-quota petitioners that legislature and not the executive should lay down the guidelines for determining backward class.

Justices Pasayat and Thakker agreed with the Chief Justice on the issue and said "it is not an excessive delegation".

The Bench held that the exclusion of minority educational institutions from the ambit of the Act was not violative of the Constitution as "they are a separate class and their rights are protected by other constitutional provisions".

"We hold that the exclusion of minority educational institutions from Article 15 (5) is not violative of Article 14 of the Constitution".

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