Equity in education

OUTSIDE A COMMON Admission Test centre in Chennai in 2007, candidates aspiring to join management courses.-S.S. KUMAR

In a historic judgment in the Mandal II case, the Supreme Courts Constitution Bench paves the way for social justice in higher education.

In four separate judgments running to 369 pages, five Judges of the Supreme Court have attempted to answer about 25 raging questions on Indias pursuit of affirmative action in higher educational institutions. In recent times, the Supreme Court has not delivered as complicated a judgment as it has in Ashoka Kumar Thakur vs Union of India, widely known as the Mandal II case. Its judgment in the Mandal I case (Indra Sawhney vs Union of India), delivered by a nine-Judge Bench in 1992, upholding 27 per cent reservation for Other Backward Classes (OBCs) in Central services, inevitably cast its shadow over the opinions rendered by the Judges in the latest case. However, several new questions on constitutional jurisprudence that were not raised earlier have been answered.

The five Judges read out their opinions on April 10 in Court No.1 of the Supreme Court in a routine manner but what they pronounced marked the achievement of a milestone in the struggle of the Backward Classes in the country for a greater share in educational opportunities than what they had been entitled to until then.

The Bench was disposing of certain public interest petitions challenging the constitutionality of the 93rd Constitution Amendment Act, enacted in 2005 inserting Article 15(5) of the Constitution. This new provision enables the state to make any special provision, by law, for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in connection with their admission to educational institutions, including private educational institutions, whether aided or unaided by the state, except minority educational institutions. The petitioners had also challenged the validity of the Central Educational Institutions (Reservation in Admission) Act, 2006, which provides for reservation in admission to certain Central government-run educational institutions for students belonging to the S.C., S.T. and the OBC categories.

Chief Justice K.G. Balakrishnan delivered the main judgment, which was followed by concurrent opinions from Justice R.V. Raveendran, and Justice Arijit Pasayat (on behalf of himself and Justice C.K. Thakker). Justice Dalveer Bhandari delivered a partially dissenting opinion.

After this, the Chief Justice read out a summary of the findings of the court so that, as he put it, there is no confusion. He said:

The 93rd Constitution Amendment Act, inserting Article 15(5), does not violate the basic structure so far as it relates to aided educational institutions. As far as private unaided educational institutions are concerned, four out of five Judges have left the question open, in the absence of challenge by such institutions, while Justice Dalveer Bhandari has held that it is violative of the basic structure.

The Central Educational Institutions (Reservation in Admission) Act, 2006, is constitutionally valid, subject to the exclusion of creamy layer.

The quantum of 27 per cent reservation for OBCs is not illegal.

The 2006 Act is not illegal merely because a time-limit is not prescribed for reservation.

There should be a review of the lists of Socially and Educationally Backward Classes [SEBCs] every five years.

The Judges wanted to avoid confusion and make their judgments appear near-unanimous on the major issues before the Bench in view of the plurality of opinions among them on various aspects of the adoption of compensatory discrimination in higher educational institutions.

Their near-unanimous stand on the validity of the 93rd Amendment and the 2006 Act were in a way the result of the elaborate arguments advanced by the respondents in this case to convince the Bench. As an astute observer of the case put it during the course of the arguments: In no other case in recent times has the Government of India fought back with so much commitment, understanding and sensitivity as in this.

The arguments before the Bench began on August 7, 2007, and ended on November 1, 2007. The petitioners included anti-reservation movements such as the Youth For Equality, the All India Equality Forum, the Citizens For Equality, the Resident Doctors Association (of the All India Institute of Medical Sciences), P.V. Indiresan, former Director of the Indian Institute of Technology, Chennai, author Shiv Khera, and Ashoka Kumar Thakur, the main petitioner, a Supreme Court lawyer. The petitioners had senior advocates and leading constitutional lawyers Fali S. Nariman, K.K. Venugopal, Rajeev Dhavan, Harish Salve and P.P. Rao as their counsel.

The respondents, the Union of India, was represented by Solicitor-General G.E. Vahanvati and Additional Solicitor-General Gopal Subramanium. Senior lawyers K. Parasaran and Rakesh Dwivedi represented Tamil Nadu and Bihar; former Law Minister Ram Jethmalani and senior advocate Ravivarma Kumar represented the Rashtriya Janata Dal and the Pattali Makkal Katchi respectively. Eminent lawyer Indira Jaising argued for the Andhra Pradesh government.

The challenge before the respondents in this case was huge. The Supreme Courts two-Judge Bench had issued an interim order partly staying Section 6 of the 2006 Act on March 29, 2007, providing for 27 per cent reservations for the OBCs in Central government educational institutions. The stay was granted after the petitioners claimed that the Act and the Amendment violated their fundamental right to equality. The court was prima facie dissatisfied with the governments defence of the non-exclusion of creamy layer among the OBC beneficiaries of the Act and the factual basis of the 27 per cent reservation for the OBCs in educational institutions.

The Union of India sought the reference of the case to a five-Judge Constitution Bench, as substantial constitutional issues were involved. The two-Judge Bench refused to vacate its partial stay on Section 6 of the 2006 Act thus depriving the OBCs of reservation-based admission in a precious academic year. The Constitution Bench too declined to vacate the stay. The governments plea that the balance of advantage was in favour of the general category students as it proposed to increase proportionately the number of seats available to them failed to convince the Bench.

The two-Judge Bench framed several substantial questions for consideration by the Constitution Bench, although the latter was at liberty to modify or enlarge those questions and, in the process, answer new questions not raised earlier.

One of the remarkable aspects of this case was that all the five Judges disagreed with the basic premise of the respondents counsel that the goal of the Constitution is not a casteless society as the respondents claimed castes constitute a social reality. Maintaining that casteless society was the ultimate objective, the petitioners counsel argued that quota was a temporary measure to uplift the backward classes and bring them on a par with non-backward sections of society so that caste distinctions would be obliterated in due course.

With their basic premise under challenge, the respondents had to show credible reasons to counter the petitioners remaining grievances. One such grievance was that the political class had vested interests in continuing with the OBC reservation policy indefinitely.

The Chief Justice answered this convincingly by suggesting that the validity of a constitutional amendment and a plenary legislation have to be decided purely as questions of constitutional law. Therefore, he rejected the plea that the amendment and law were based on vote-bank politics as legally unacceptable.

Rajeev Dhavan, counsel for the All India Equality Forum, argued that 27 per cent reservation under the 2006 Act was based on criteria that did not exist. He said the historic discrimination was not a valid criterion for determining the beneficiaries of affirmative action, that the correct approach was to look at the continuing wrong and not past discrimination and that the quotas should not be a punishment for the non-reserved category resulting in reverse discrimination. He argued that the Doctrine of Equality is adversely affected by giving a wide and untrammelled enabling power to Parliament, which may affect the rights of the non-OBCs, the S.Cs and the S.Ts.

It was left to K. Parasaran to argue that education and the economic well-being of an individual give him or her a status in society. When a large number of OBCs, S.Cs and S.Ts get educated better and get into Parliament, legislative assemblies, public employment, professions and into other walks of public life, the attitude that they are inferior will disappear. This will promote fraternity, assuring the dignity of the individual and the unity and integrity of the nation, as envisaged in the Preamble to the Constitution.

Parasaran pointed out that determining OBCs was a long-drawn process based on materials and evidence that would cause enormous delay. Therefore, he said, Parliament had to necessarily leave it to the Executive. He observed that it was for the first time certain special provisions were being made in favour of the SEBCs, the S.Cs, and the S.Ts for reservation of seats in Central educational institutions after 56 years of the Constitution coming into force.

He suggested that over a period of time, depending on the result of the measures taken and improvements in the status and educational advancement of the S.Cs, the S.Ts and the SEBCs, the matter could always be reviewed. The Act could not be struck down at its commencement on the grounds that no time-limit for its operation has been fixed, he said. All the five Judges accepted his contention as reasonable.

Another counsel for the petitioners, P.P. Rao, contended that special provisions can only be made up to the matriculation stage. Parasaran explained that if this plea was accepted, it would result in higher education being the privilege of the higher classes, and distort the concept of social advancement of the downtrodden and negate the goal envisaged by the Preamble. The five Judges unanimous rejection of P.P. Raos submission marked an implicit recognition of Parasarans view.

Similarly, the Judges agreed that there was justification in including many castes in the Central list of Backward Classes. Vahanvati pointed out that the National Commission for Backward Classes (NCBC) had recommended 297 requests for inclusion. At the same time, it rejected 288 requests for inclusion of main castes and 243 requests for the inclusion of sub-castes/communities in the Central List for Backward Classes. Taking some of these cases of inclusion at random, he demonstrated how each one of such inclusions was justified.

One such caste included in the list was Chasas of Orissa. They were in the State List, but not in the list drawn up by the Mandal Commission. As only castes that were common to both the Lists were included in the Central List, the NCBC considered the case of Chasas for inclusion on merit. The NCBC held in its findings that the Chasas are a caste of cultivators, belonging to the middle and lower peasantry. Being numerically a very large community, some among them may be found in Class I government jobs and in professions, but by and large, their representation in professions and government jobs is very low compared to their population size, the NCBC had noted.

Vahanvati also pointed out to the Bench that the argument that the inclusions are motivated by political considerations was erroneous inasmuch as the Commission had emphatically rejected the request for the inclusion of politically dominant castes such as the Marathas in the Central List, in spite of the agitation threats from the representatives of the Maratha community.

He also cited a few other instances when the Commission rejected or partly accepted requests for inclusion, after an elaborate hearing and reasoning, totally uninfluenced by political considerations. He specifically referred to the cases of inclusion of Jats in Rajasthan (except those in Bharatpur and Dholpur), and 16 Lingayat castes/sub-castes in Karnataka. He also referred to the rejection of requests for inclusion from the Kayasthas of Rajasthan and Delhi, and the Khandayats of Orissa. Even Justice Pasayat, who was critical of the NCBCs failure to exclude any class from the OBC list after a proper revision, expressed no reservations about the cases of inclusion cited by Vahanvati.

Vahanvati also demolished the petitioners claim that there has been no effort on the part of successive governments to concentrate on elementary education by giving details of the Sarva Shiksha Abhiyan (SSA), a national flagship programme launched in 2001-02 for achieving the goal of Universalisation of Elementary Education (UEE), through a time-bound approach in partnership with States and local bodies. None of the Judges contradicted these submissions.

The Chief Justice underlined that the petitioners did not produce any documents to show that the Backward Class citizens were less than 27 per cent vis-a-vis the total population of the country or that there was no requirement of 27 per cent reservation for them.

He said that though a caste-wise census was not available, several other data and statistics are available. Various Commissions have been in operation determining as to who shall form the SEBCs, he wrote in his judgment (Paragraph 193).

Even Justice Pasayat, who as part of the two-Judge Bench, stayed the operation of Section 6 of the 2006 Act last year, agreed with the respondents counsel that the percentage of Backward Classes in the country can certainly be not less than 27 per cent. But he held the view that occupational label in determining the backwardness of a class had lost much of its significance (Paragraph 78).

Justice Pasayats opinion, given also on behalf of Justice Thakker, was a virtual indictment of many of the contentions advanced by the respondents. Justice Dalveer Bhandaris opinion reads more like a dissent. Still, the three Judges found sufficient reasons to uphold the Amendment and the Act, because they were convinced that the grounds for setting them aside were untenable or of limited validity.

The most contentious aspect of the governments policy of introducing reservation for OBCs in educational institutions was its intention not to exclude the socially advanced persons (creamy layer) of the OBCs from among the beneficiaries of the 2006 Act. The respondents advanced several arguments in defence of such non-exclusion in educational institutions, even though the Supreme Courts nine-Judge Bench had clearly held in Indra Sawhney 1 in 1992 that such exclusion was mandatory in the context of reservations for OBCs in Central services.

The Bench unanimously directed the government to issue a notification excluding the creamy layer from the Acts OBC beneficiaries. As the Act is silent on exclusion of creamy layer, the Bench had no difficulty in upholding it, but said its validity would be contingent on the governments notification excluding the creamy layer. During the arguments, Vahanvati revealed that the government had intended not to exclude the creamy layer from the OBCs for the purposes of the Act but it would abide by the Supreme Courts decision, indicating that the government was not rigid on the issue.

It is obvious that the principle of excluding creamy layer, as far as the OBCs are concerned, is sacrosanct to the Supreme Court not only for determining which is a socially and educationally backward class but also for making the OBC reservation immune to the criticism that it violated the fundamental right to equality and non-discrimination.

The Bench unanimously felt that the exclusion of creamy layer from the OBCs would imply that the policy of compensatory discrimination was not based on caste alone but on other factors such as social and economic advancement as well. Constitutional provisions bar discrimination based only on caste.

Only the Chief Justice acknowledged the problems in excluding creamy layer from the OBCs. He found sufficient force in the governments plea that most of the seats reserved for the OBCs would remain unfilled if the existing creamy-layer criterion being followed for recruitment in Central services, which was adopted in 1993 and revised in 2004, is to be followed in the case of admission to Central educational institutions.

The Chief Justice, therefore, allowed the government to relax this criterion for Central jobs if necessary, so as to find sufficient number of OBC candidates to fill the seats reserved for them. Other four Judges did not contradict his opinion.

Even as it appeared that the court has rejected the governments reasons for non-exclusion of creamy layer from the OBCs, it was accommodative enough to suggest a way out and balance the competing claims on this issue while keeping the scope for judicial review of any relaxation of norms for excluding the creamy layer.