Indian apex court upholds validity of reservation

New Delhi: The Supreme Court has held that caste can be the basis for determining Socially and Educationally Backward Classes (SEBCs) for providing 27% reservation in central higher educational institutions.

Under the plan the lower castes' share of places in educational institutions would more than double to nearly 50%.

A five-judge Constitution Bench headed by Chief Justice K.G. Balakrishnan upheld the Central Educational Institutions (Reservation in Admission) Act, 2006, paving the way for its implementation in all central educational institutions.

Last year, the government pushed a bill through parliament in which places at some of the country's best-known professional colleges were set aside for students from lower-caste and disadvantaged communities.

The Supreme Court had put the programme on hold last year after several petitions challenging it were filed. The controversial plan split the country and led to widespread protests across India when it was announced last year.

Many argued that the plan could hurt India's rapid economic rise. But it has the support of millions of students from underprivileged groups.

PM committed to removing inequalities

Indian Prime Minister Manmohan Singh has said his government is committed to removing inequalities so that everyone can enjoy the fruit of India's economic growth.

Efforts to increase affirmative action quotas have been bitterly opposed by students at some of the country's best-known professional colleges.

Student groups have already said they are unhappy with the ruling and that they will hold protests against the order.

The landmark verdict comes as a major victory for the United Progressive Alliance government, which had to face embarrassment after the apex court stayed the implementation of the Other Backward Classes (OBC) quota law last year.

The bench, also comprising justices Arijit Pasayat, C.K. Thakker, R.V. Raveendran and Dalveer Bhandari, unanimously said the “creamy layer” must be excluded from the socially and educationally backward classes.

The judgment

Writing the main judgment, Chief Justice K.G. Balakrishnan said: “Though for the purpose of convenience, the list is based on caste, it cannot be said that backward class has been identified solely on the basis of caste. The only possible objection that could be agitated is that in many of the castes included in this list, there may be an affluent section (creamy layer) which cannot be included in the list of SEBCs.”

He added: “When socially and educationally backward classes are determined by giving importance to caste, it shall not be forgotten that a segment of that caste is economically advanced and they do not require the protection of reservation.”

Explaining the exclusion of the creamy layer, the Chief Justice stated: “They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the ‘creamy layer’ principle is not applied, it could easily be said that all the castes that have been included among the SEBCs have been included exclusively on the basis of caste.”

Justice Bhandari asked the government to exclude the children of former and present MPs and MLAs from the purview of OBC reservation. The judges, however, clarified that the “creamy layer” concept was not applicable to Scheduled Castes and Scheduled Tribes. There should be a periodic review after five years on continuing with the OBC quota, they added.

Identifying ‘creamy layer’

“As far as the parameters for identification of creamy layer are concerned, the office memorandum dated September 8, 1993 (specifying upper income limit of Rs.2.50 lakh per annum and giving categories of persons excluded for availing reservation) may be applied. OBC should be deemed to mean SEBC after exclusion of creamy layer,” said the Chief Justice.

Justice Pasayat stated: “[A] notification should be issued by the Union of India after exclusion of the creamy layer for which necessary data must be obtained by the central and state governments. To strike the constitutional balance it is necessary and desirable to earmark certain percentage of seats out of permissible limit of 27% for socially and economically backward classes.”

He further said: “For identifying backward classes, the Commission set up pursuant to the directions of this court [in the Mandal case judgment] has to work more effectively and not merely decide applications for inclusion or exclusion of castes. While determining backwardness, graduation (not technical graduation) or professional [graduation] shall be the standard test yardstick for measuring backwardness.”

‘Caste-based discrimination remains’

Referring to the petitioners’ submissions, quoting parliamentary proceedings, that the law was rushed through Parliament, Justice Pasayat said: “The courts should not normally critically analyse proceedings of Parliament. This flows from a very fundamental aspect, i.e., mutual respect of Parliament and the judiciary for each other.”

In his judgment, Justice Dalveer Bhandari agreed with Justice Pasayat and said that “once a candidate graduates from a university, he must be considered educationally forward.”

While largely agreeing with the other judges, he said: “I nevertheless believe that caste matters will continue to matter as long as we divide society along caste lines. Caste-based discrimination remains. Violence between castes occurs. Caste politics rages on. Where casteism is present, the goal of achieving a casteless society must never be forgotten.”

The bench also upheld the validity of the Constitution (93rd Amendment) Act 2005 that enabled the government to enact laws providing for OBC reservation in central educational institutions, saying it did not violate the Constitution’s basic structure. It also rejected the petitioners’ contention that not extending the OBC quota law to minority educational institutions was illegal.

The exclusion of minority educational institutions from the ambit of the law did not violate the Constitution as “they (minority institutions) are a separate class and their rights are protected by other constitutional provisions,” the CJI said.

There were four judgments delivered by the five judges. While justices Pasayat and Thakker delivered a common judgment, Justice Raveendran chose to write a separate but brief judgment despite agreeing with the CJI’s detailed judgment.

The CJI emphasised: “Reservation is one of the many tools that are used to preserve and promote the essence of equality so that disadvantaged groups can be brought to the forefront of civil life.”