Court rules

The Supreme Court, after forcing the doctors to end their strike, begins to hear the various contentions against the reservation policy.

LITIGATION is perhaps an option that the doctors striking against the reservation policy would have preferred to avoid. when the Supreme Court vacation Bench advised them to suspend their agitation as the court was set to hear some petitions challenging the validity of the policy, they were in no mood to listen. The Bench, therefore, issued an order on May 31 directing them to resume work.

It reasoned that the protests, strikes and demonstrations were related to the expression of views or concern by doctors, students and others. "There cannot be two channels for adjudication. Since the issues are being examined by this court, if the strikes, etc. are permitted to be continued, they practically yield no result except causing inconvenience to the general public. As was noted by this court in Paschim Banga Khet Mazdoor Samity and Ors. v. State of West Bengal and Anr. (1996 (4) SCC 37), a person's right to get treated is inseparable from Article 21 of the Constitution of India. Keeping that aspect in view, we had required the persons who were on strike, demonstration, etc. to call them off to avoid inconvenience to the patients. The damage done to a patient is sometimes irretrievable, but the grievances of the persons who are resorting to strikes, etc. can be remedied in appropriate proceedings and the issues are being examined by this court," the Bench observed. It said if the strikes continued after the court began hearing the matter, it would be a cry in the wilderness as their protests would not be heeded.

Although the court did not threaten the striking doctors with punitive action if they violated its directive, the prospect of such action forced most of the agitating doctors to fall in line. In the process, counsel appearing for the agitating doctors managed to secure two extraordinary concessions from the Bench. First, the Bench directed that in case the protests were called off, the government should not take any punitive action. Second, if the services of any doctor has been terminated for participating in the strike, the government should permit them to join duty.

The doctors' dereliction of duty has to be understood in the context of their protest against reservation for OBCs because of its likely impact on the standards of medical education. The Medical Council of India (MCI) evolved the Graduate Medical Education Regulations in 1997 and the Post-graduate Medical Education Regulations in 2000. Both these regulations envisage reservation for OBCs, apart from the Scheduled Castes and the Scheduled Tribes in the selection of students and a fixed minimum percentage of marks to be secured by students in the entrance examinations (50 per cent for general category and 40 per cent for reserved category). Had the doctors been convinced about the futility of reservation, they ought to have protested against the regulations then.

There were two petitions before the Supreme Court Bench: one by Ashoka Kumar Thakur, an advocate, who questioned the basis of reservation, and the second by Shiv Khera, who challenged the validity of the Constitution 93rd Amendment inserting Article 15(5) as an enabling provision to introduce reservation for OBCs. The Resident Doctors Association of Maulana Azad Medical College and the All India Institute of Medical Sciences, New Delhi, have filed an interlocutory application, in which they challenged the entire reservation policy followed since 1950, alleging that there was no data to support the policy. They also questioned the government's reliance on the Mandal Commission report, without fulfilling its requirement that social and economic conditions be reviewed periodically before extending reservation. The Bench refused to restrain the government from implementing the reservation policy, but held that if it implemented it, it would be subject to the outcome of the case before it. The Bench, comprising Justices Arijit Pasayat and Lokeshwar Singh Panta, framed the basic issues in the petitions before them as follows: What is the basis for the determination/classification as to who belongs to the OBCs. And the modalities to be adopted for the implementation of the policy in question. It directed that in the counter-affidavit to be filed by the government and other respondents, these aspects shall be dealt with.

It considered the plea that implementation of the policy would result in dividing the country on caste basis. "This question has serious and sensitive social and political ramifications and if the necessity so arises, the issue shall be dealt with appropriately when the matter is taken up for final hearing," it said. The Bench gave eight weeks for filing counter-affidavits and six weeks for filing rejoinders.

Whatever the outcome of the case, it appears that the petitioners have ignored the justification for reservation in the judgment in Indra Sawhney v. Union of India in 1993. Although it was with reference to the implementation of the Mandal Commission recommendations to ensure adequate representation of OBCs in Central services, the principles laid down by the court would certainly apply to reservation in educational institutions as well.

The petitioners apparently argue that caste is not the proper basis to determine who belongs to OBCs, as it is inherently divisive. It is worth quoting the court's judgment in the Indra Sawhney case (paragraph 83): "Any authority entrusted with the task of identifying backward classes may well start with the castes... . Since caste represents an existing, identifiable, social group spread over an overwhelming majority of the country's population, we say one may well begin with castes, if one so chooses, and then go to other groups, sections and classes. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward." It observed in paragraph 85: "[T]he Mandal Commission appointed under Article 340 was concerned only with the socially and educationally backward classes contemplated by the said article. Even so, it is evident that social backwardness has been given precedence over others by the Mandal Commission - 12 out of 22 total points. Social backwardness - it may be reiterated - leads to educational and economic backwardness. No objection can be, none is taken, to the validity and relevancy of the criteria adopted by the Mandal Commission."

In paragraph 119-120, it said: "The criteria evolved by Mandal Commission for defining/identifying the OBCs cannot be said to be irrelevant. Maybe there are certain errors in actual exercise of identification, in the nature of over-inclusion or under-inclusion, as the case may be. But in an exercise of such magnitude and complexity, such errors are not uncommon. These errors cannot be made a basis for rejecting either the relevance of the criteria evolved by the Commission or the entire exercise of identification."

The court pointed out that the Office Memorandum issued by the V.P. Singh government implementing 27 per cent reservation in Central services on August 13, 1990, did not incorporate the Mandal Lists of OBCs as such. It incorporates in truth and effect the State lists (as only those common to both the lists were included). As the Centre's move to extend 27 per cent reservation for OBCs in educational institutions is criticised on the grounds that it is based on wrong data, these observations of the Supreme Court are relevant. If the Centre adopts the same list of OBCs applicable in the Central services for use in educational institutions, it cannot be assailed as invalid.

The protesters who have expressed lack of faith in the executive in implementing the reservation policy may well ponder over what the court had said in this case: "In a social measure like the impugned one, the court must give due regard to the judgment of the executive, a co-equal wing of the state, and approach the measure in the spirit in which it is conceived."