Lex

• Post Information
  • Date: Thursday, April 10, 2008 Time: 7:13 am Category: General Discussion: 18 Comments

• Post Navigation
  • « Does parliamentary ego qualify as a privilege ?
  • Art 355: not just a weapon of reprimand but a duty begging to be discharged »

The 5 judge constitution bench of the Supreme Court has almost unanimously upheld the 93rd constitutional amendment and the Reservation Act pursuant thereto which enables the Government to have reservations for OBCs in premier educational institutions among others.

The court though has qualified its sanction to these reservations by stating :

1. The Creamy layer has to be excluded lest the reservations become unconstitutional.

2. There has to be a periodic review every 5 years on the effectiveness of the said reservations.

Thus, while the anti-reservationists sought a surgical remedy, the court has handed out a balm. The court though cannot be faulted for failing the Petitioners simply because they were shackled by the judgement of 9 judges in Indra Sawhney I which is turning out to be a historically damaging decision to our dream of a caste-less society.

The individual views of the 4 judges who pronounced their judgments made an interesting reading too. The Chief justice did not find any fault with the Act or the Constitutional amendment or the identification process but only emphasized on the exclusion of the creamy layer which would have to determined according to the 1993 Office Memorandum. He also did not find fault with the lack of a time frame in the said Act.  He held that the 27% figure could not be questioned and also added that the suggestion that those having completed their 10+2 ought to be excluded, cannot be accepted. He thus interpreted OBCs to be socially and educationally backward classes in this context. However, he sought a10 yearly review of the implementation of these measures.

Mr. Justice Arijit Pasayat speaking for himself and Mr. Justice C.K. Thakker emphasized on the exclusion of the creamy layer and suggested a 5 yearly review. He made some very significant suggestions: To ensure room for merit, there must be a fixed cut off criteria for the OBCs with a fixed concession such as 5 grace marks. If they are unable to make the cut even with the fixed concession then they ought not to be given the seat and the same should be offered to the general category.He also came down heavily on the commission for BCs saying that it was not a body merely to add castes in the lists but it should rather work in a more comprehensive manner to make reservations meaningful. He also added that the stress should be on primary and secondary education rather than the advanced stages in providing such support systems.

Mr. Justice R.V. Ravindran concurred with with the Chief Justice and Mr. Justice Pasayat.

All of the above named Justices left unanswered the question as to whether the constitutional amendment violated the basic structure by imposing reservations on private un-aided institutions since none of the private players had petitioned the court.

The lone dissenter, though partially, was Mr. Justice Dalveer Bhandari. Though he upheld the Act, inter alia he held:

1. The constitutional amendment is violative of the basic structure viz the private educational institutions.
2. The creamy layer must be excluded and children of MPs among others are automatically included in the said layer.
3. The Government should stress on upholding Art. 21A and thus should focus on primary education.
4. He noted that he “was compelled” to uphold the validity of caste as a criteria for reservations in view of Indra Sawhney I and added that this could not be allowed in perpetuity. He said that caste as a criteria could be continued only for the next 10 years and thereafter it should be a purely economic criteria.
5. He also added that those who were graduates could by no means be classified as educationally backward and hence should be ineligible for this reservation.

What this judgment implies for us: Caste based reservations are to stay in educational institutions but minus the creamy layer. The silver lining in this verdict is the scope for review every 5 years. Thus whenever (if and when) we have the political will, a difference could be made to make these reservations meaningful rather than rendering them a mere political gimmick.

Let’s hope the political will does emerge some day !

Content © Lex
Proudly powered by WordPress
Theme designed by The Design Canopy

Entries (RSS)
Comments (RSS)

19 queries.
0.457 seconds.