Unequal race

The Supreme Court's order staying reservation for OBCs in Central higher educational institutions is a setback to the process of distributive justice.

V. VENKATESAN in New Delhi

STUDENTS of constitutional law are taught an important and basic principle with regard to the interpretation of law very early in their law schools. Courts, according to this principle, must presume that the legislature understands and appreciates correctly that the laws it makes are directed at problems made manifest by experience and that its discriminations are based on adequate grounds. This presumption would arise when it is otherwise not possible for courts to come to a satisfactory conclusion on the constitutionality of a statute.

The logic of this principle is that laws are required for governance and it is not fair on the part of the judiciary to suspend or undo a piece of legislation on the mere suspicion of unconstitutionality. That is why this principle shifts the burden of proof from the government to the citizen, requiring the latter to prove that a law is unconstitutional.

On March 29, when the Supreme Court Bench comprising Justices Arijit Pasayat and Lokeshwar Singh Panta issued an interim order staying the operation of Section 6 of the Central Educational Institutions (Reservation in Admission) Act, 2006, with regard to the Other Backward Classes (OBCs), it appeared as if this principle of constitutional law had been turned upside down.

The Bench admitted that the contentions of the petitioners and the Union of India in this case (Ashoka Kumar Thakur vs. Union of India and Others) focussed not only on legal issues but also on factors of great social relevance. "The issues need deeper consideration in the background of their legal and social importance," the Bench said while adjourning the case to the third week of August for final hearing. The Bench felt, apparently correctly, that it was premature to conclude that the law under challenge was unconstitutional. But the Bench, curiously enough, did not deal with the question as to why the principle of presumption of constitutionality of a statute did not arise in this case.

Section 3 of the Act reserves seats in admission "out of the annual permitted strength in each branch of study or faculty" in a Central educational institution in the following manner: 15 per cent for the Scheduled Castes (S.C.s), 7.5 per cent for the Scheduled Tribes (S.T.s) and 27 per cent for the OBCs.

Section 4 specifies institutions exempted from the purview of the Act. These include institutions established in the tribal areas referred to in the Sixth Schedule to the Constitution, specified institutions of excellence, minority educational institutions, and courses at high levels of specialisation, which the government may specify.

Section 5(1) of the Act requires that every Central educational institution shall, with the prior approval of the appropriate authority, increase the number of seats in a branch of study or faculty over and above its annual permitted strength so that the number of seats, excluding those reserved for the S.C.s, the S.T.s, and the OBCs, is not less than the number of such seats available for the academic session immediately preceding the date of the coming into force of the Act. This Section clearly aims to prevent a possible pruning of the number of seats available in the general category because of the enhanced reservation for the OBCs.

Section 5(2) links reservation with the expansion of the number of seats, enabling the staggering of reservation for the OBCs over a maximum period of three years for financial, physical or academic reasons or to maintain the standards of education.

Section 6 of the Act requires that institutions shall take all steps required to give effect to the provisions of Sections 3, 4 and 5 of the Act for the academic session commencing in 2007.

The Act is a significant legislative measure, as it is the first time Parliament, through law, has recognised reservation of seats in educational institutions as an expedient and necessary measure to give effect to the constitutional provisions. Prior to this, reservation at the Central level was resorted to generally as a result of executive decisions.

The Act is inspired by key provisions in the Constitution, namely, Article 46 and Article 15(5). Article 46, a directive principle, lays down that the state shall promote with special care the educational and economic interests of the weaker sections and, in particular, of the S.C.s and S.Ts, and shall protect them from social injustice and all forms of exploitation. The principle, whether it is fair division of wealth or educational opportunities, is the same: from each according to his capacity, to each according to his needs.

Article 15(5), enacted last year, seeks to promote, as part of the policy of protective discrimination, the educational advancement of the socially and educationally backward classes of citizens, the S.C.s, and the S.T.s through special provisions relating to the admission of students from these categories in all educational institutions.

The Bench found it desirable to keep on hold the operation of Section 6 of the Act for the OBCs in response to an interlocutory application (IA) filed by Professor P.V. Indiresan and others to grant interim protection pending final disposal of four similar petitions filed by Ashoka Kumar Thakur, an advocate, Shiv Khera, a management specialist, the Resident Doctors Welfare Association (formed by doctors protesting against OBC reservation), and the Youth For Equality, a forum formed by medical and other students to protest against the government's reservation policy. The Bench made it clear that it was not staying the operation of the statute, particularly Section 6, for the S.C.s and the S.T.s.

A close reading of the interim order reveals the complete absence of justification for the stay of Section 6 with regard to the OBCs. The only substantial grounds for the stay is to be found in this sentence: "What may have been relevant in 1931 Census may have some relevance but cannot be the determinative factor."

The Central government's counter-affidavit to the Resident Doctors Welfare Association's petition shows how flawed this concern is. The government pointed out that in the absence of more updated Census statistics, the Mandal Commission and other Backward Classes commissions opted for the next best alternative, namely, to make projections from the last available Census headcount. This methodology of estimating the population of Backward Classes was fully within the knowledge of the Supreme Court in the Indra Sawhney case, when it upheld the constitutionality of the 27 per cent reservation for the OBCs in public services in 1992.

In particular, the government referred to the judgment given by Justice Ratnavel Pandian in the Indra Sawhney case. Paragraph 134 of the judgment said:

"A perusal of the Report [Mandal Commission] would indicate that the 1931 Census does not have even a remote connection with the identification of OBCs. But on the other hand, they are identified only on the basis of the country-wide socio-educational field survey and the Census report of 1961 particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes and personal knowledge gained through extensive touring and [the] receipt of voluminous public evidence and lists of OBCs notified by various States. It was only after the identification of OBCs, the Commission was faced with the task of determining their population percentage, and at that stage [the] 1931 Census became relevant. It is to be further noted [that] after [the] 1931 Census, no caste-wise statistics had been collected. In fact, the identification of classes by the Commission was based on the realities prevailing in 1980 and not in 1931. It is brought to our notice that the same method had already been adopted in Section 5 of the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976."

Justice Ratnavel Pandian then referred to Chapter XII of the Mandal Commission Report, the relevant paragraphs of which read thus: "Systematic caste-wise enumeration of population was introduced by the Registrar-General of India in 1881 and discontinued in 1931. In view of this, figures of caste-wise population beyond 1931 are not available. But assuming that the inter se rate of growth of population of various castes, communities, and religious groups over the last half a century has remained more or less the same, it is possible to work out the percentage that all these groups constitute the total population of the country. Working on the above basis, the Commission culled out caste/community-wise population figures from the Census records of 1931 and then grouped them into broad caste-clusters and religious groups."

In the March 29 interim order, the Bench ignores this reference of the Central government to Justice Ratnavel Pandian's judgment while answering the petitioners' objection to the perceived reliance on the 1931 Census, which the Bench seems to have accepted as valid. Instead, the Bench relied on a general observation by Justice Ratnavel Pandian, which does not throw any light on the relevance of the 1931 Census.

The Bench quoted with approval Justice Ratnavel Pandian's observation that before a conclusion is drawn that a caste is backward or is inadequately represented in the services, the existence of circumstances relevant to the formation of opinions is a sine qua non. The Bench leaves unexplained its allusion that the government's opinion suffers from the vice of non-application of mind or formation of collateral grounds or that it is beyond the scope of the statute, or is based on irrelevant and extraneous material. The selective quoting of the Indra Sawhney judgment by the Bench is bound to dismay observers. The other major grounds on which the Bench granted a partial stay of the Act is to be found in its defence of the creamy-layer formula. Again, the Bench avoids any discussion or even mention of the reasons that the Central government cited for not excluding the creamy layer among the OBCs in the Act.

In his written submissions to the court, Additional Solicitor-General Gopal Subramanian explained the rationale of including the creamy-layer beneficiaries in the Act. He said: "The differential between qualifying marks for general category and that of S.C.s and S.T.s, and OBCs that is possible for admission in education is much narrower than, and hence incomparable to, the degree of latitude available and possible for prescribing qualifications for public employment. This narrow range of flexibility in respect of qualifying marks for admission, necessitated by the need of each institution to prescribe cut-off norms in order to maintain academic standards, will have the effect of reducing the chances of adequate number of OBC candidates for filling the entire quota of 27 per cent being available if Socially Advanced Persons (SAPs) or Creamy Layer (CL) is excluded."

He added: "In this context, an essential difference between reservation in employment and reservation in higher education needs to be noted. A successful candidate in the former begins to earn; in the case of the latter, selection for admission through reservation is the beginning of heavy expenditure for the family. Even before selection, the family has to incur heavy expenditure for coaching. In this context, cutting off a section as SAPs/CL may result in shortfall of SEBC (Socially and Educationally Backward Classes)/OBC quota."

He explained the inherent risks in excluding the creamy layer under the Act: "There is a danger that the top qualified candidates with adequate cut-off marks may be cut off as SAPs/CL. At the other end, candidates who are not SAPs/CL may be cut off on the grounds that their marks are too low as compared to the cut-off point. The result of this will be leakage at both ends and flow of quota seats to the general category, defeating/truncating the constitutional policy of reservation." What is clear from this is the government's conviction that the creamy-layer formula evolved in 1993 pertained to public employment, under Article 16(4), and had no relevance for reservation in educational institutions, which is governed by Article 15(5), enacted last year.

Now, is there any evidence that the Bench, in its interim order, rejected this contention of the government? The Bench said: "Creamy -layer rule is a necessary bargain between the competing ends of caste-based reservation and the principle of secularism. It is a part of [the] constitutional scheme. Therefore, these cases have to be examined in detail as to whether the stand of [the] Union of India that [the] creamy-layer rule is applicable to only Article 16(4) and not Article 15(5) is based on any sound foundation. That is more so because the lists relatable to Article 16(4) form the foundational base for Article 15(5)." At the most, it can be inferred that the Bench has serious doubts about the government's stand; but as any student of law would suggest, doubt alone cannot be the basis for staying the operation of a statute.

Meanwhile, Gopal Subramanian disassociated himself from two statements attributed to him by the Bench. In paragraph 19 of the interim order, the Bench says: "There is no dispute and in fact it was fairly accepted by learned Additional Solicitor-General that there is need for periodical identification of the backward citizens, and for this purpose the need for survey of entire population on the basis of an acceptable mechanism."

Speaking to Frontline, Gopal Subramanian denied having accepted the need for a survey of the entire population for the purpose of periodical identification of backward citizens, which, according to him, amounts to a headcount. Gopal Subramanian also denied having taken the stand before the Bench - as claimed in paragraph 28 of the order - that imperfection may be there in the data, but so far as the existing modalities are concerned, there is no difficulty in adopting the same. He told Frontline that the government would point out these errors to the Bench while applying for the vacation of the `stay'. The Bench found it desirable to keep Section 6 of the Central Educational Institutions (Reservation in Admission) Act on hold rather than stay it probably because it would have been incorrect for a two-Judge Bench to do so, as the issues raised in the order were already settled in the Indra Sawhney judgment, which was delivered by a nine-member Bench.

The Central government presented a strong case to the Supreme Court against the petitioners' plea for staying the operation of Section 6 of the Act. But the interim order completely disregarded the government's contentions. Instead, what one finds in the order is an elaborate presentation of the petitioners' arguments beginning with this remark: "The statute in question, it is contended, has lost sight of the social catastrophe it is likely to unleash. Not only the products would be intellectual pigmies as compared to normal intellectual sound students presently passing out... ."

To rational observers, a petition making such offensive remarks against the beneficiaries of an Act under challenge did not deserve to be entertained at all. Clearly, the interim order suffers from a serious lack of objectivity and balance.