Topics Covered

Historical background of Reservation Facts of the present case Issues before the court Contentions/Arguments of both parties Judgement Ratio Decidendii

Historical Background
Reservation in India started with the appointment of Hunter Commission in 1882 In 1921 Madras Presidency introduced Communal GO in which 44% seats were reserved for nonbrahmins, 16% each for Brahmins, Muslims, Anglo-Indians and Christians and 8% for SCs Last in line was the Poona pact and some provisions of the GOI Act, 1935 In the Pre-independence era reservation was first given in the case of Champakam Dorairajan. The present case is one of the most recent case under reservation (April 10th 2008)

Facts of the present case

The present case is a PIL challenging the 93rd amendment Act which enabled reservation for OBC in government as well as private educational institutions Also challenged the conclusion of the Mandal commission that 52% of Indias population is OBC April 2006, 27% reservation was given Government responded by saying policy will not be implemented till the introduction of Central Educational Institutions (Reservation in Admission ) Bill,2006

 The bill was subsequently passed in the Parliament The Supreme Court, as an interim measure, stayed the operation of admission to medical and professional institutions for OBC's under the 27% quota category for the year 2007-2008 It clarified that the benefit of reservation for the SCs and STs could not be withheld and the Centre can go ahead with the identification process to determine the backward classes. The final hearing took place on 10th April 2008 by a 5 judge bench.

Issues before the Court

Whether the 93rd Amendment Act is violative of the Basic structure of the constitution? Whether the reservation granted to OBCs is arbitrary and ultra vires the provisions of Constitution? Whether the method adopted to define and calculate the population figure of OBCs is appropriate? Whether the benefit of reservation can be extended to the creamy-layer?

Validity of the 93rd amendment

Article 15(5) directly conflicts with Article 15(4) as both Articles exclude the remaining provisions of Article 15. It was argued that the provisions of the Act are facially violative of Article 14 and it could only be justified on the basis of compelling State necessity Article 15(5) excludes Article 15 and Article 19(1)(g). Hence, it was argued that Article 15(5) could not be read in conformity with the principles in Articles 14 and 15, and thus violated the basic feature of the equality Article 15(5) was specific to admission in educational institutions, whereas Article 15(4) was general, Article 15(5) would neutralise 15 (4) with respect to reservations in educational institutions. On whether Article 15(5) was constitutional in light of Article 19(1)(g), the respondents argued that both provisions operated in different fields Article 15(5), insofar as it dealt with state maintained and aided institutions, did not violate the basic structure of the Constitution

OBC reservation is arbitrary

No acceptable data for fixing Obligation on the state to 27% reservation secure to our people justice social, economic and political. Admission should be purely on merit( violative of Ar 14) Fundamental Rights and Directive Principles are both Act not a genuine social complementary and engineering measure but vote supplementary to each other. bank politics and would create Preamble The said act seeks permanent fissures in society to implement Ar 46 & 38 the caste cannot be the sole Affirmative action is required. criteria. The provisions in the Many of the castes included in Constitution acknowledge that SEBCs are not really backward reservation is an integral classes and some of them were part of the principle of even rulers of erstwhile States equality where inequality for a number of years. The exists. benefits and privileges which are given to SCs/STs should not be extended to OBCs.

Method of determination of OBCs is invalid

Foundation for fixing 27% appears to be the view that 52% of the population belong to OBC. There is no supportable data for this proposition. Based on the outdated census of 1931. Moreover, the figures provided by NSSO & NHFS placed the OBC population at 41% as opposed to the Mandal estimate being 52%. The Government should not act on the assumption that once a caste is considered backward, it should continue to be backward for all times Identification is based on the historical atrocities inflicted on that class, discriminatory patterns followed against that class, disadvantage suffered by that class and disempowerment in respect of the power of the State and political non-representation It was also argued that since no Commission has fixed the percentage below 52% and, therefore, there is nothing wrong in fixing the percentage at 27%.

Validity of creamy layer

Extension of reservation benefits to creamy layer is antithetical to the very object of advancement of socially and educationally backward classes The first contention is based on the hypothesis that the chances of adequate number of OBC candidates filling the entire quota of 27% would not be possible in the event of exclusion of creamy layer. If that had been the case, then the Act should not have intended to increase the number of seats or even for that sake fixed such a high percentage for OBC reservation. The concept of creamy layer may have relevance for the purpose of Article 16(4), but is really inconsequential so far as Articles 15(4) and 15(5) are concerned In the matter of education there cannot be any exclusion on the ground of creamy layer. Such exclusion would only be counter productive and would retard the development and progress of the groups and communities and their eventual integration with the rest of the society.

JUDGEMENT
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 institution Creamy Layer" principle is one of the parameters to identify backward classes. Therefore, principally, the "Creamy layer" principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. Principle of exclusion of Creamy layer applicable to OBC's. The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs)to balance reservation with other societal interests and to maintain standards of excellence. Held that the determination of SEBCs is done not solely based on caste and hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution.

JUDGEMENT
So far as determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after exclusion of the Creamy Layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories. There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney has to work more effectively and not merely decide applications for inclusion or exclusion of castes.

Ratio decidendi
"Principle of "creamy layer" is applied not as a general principle of reservation but for the purpose of identifying the socially and educationally backward class. "Legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground."

"Validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law."
"Once a candidate graduates from a university, is said to be educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter."

 "For the benefit of the 93rd Amendment the recipients should be educationally backward as per the text of the Article 15(5) of the constitution." "If reservation in education is to stay, it should adhere to a basic tenet of Secularism: it should not take caste into account, as long as caste is a criterion, a casteless society will never be achieved. "Establishment and running of an educational institution falls under the right to an occupation and right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution, reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution."