Secular Courts in the State of Israel

Prologue
At the very outset, I would like to bring to the notice of the reader that by virtue of being a student of law, I intend to discuss here not the politics of reservation for OBCs, but the subtle legalities involved in the interim order given by the Supreme Court in staying the operation of s.6 of the Central Educational Institutions (Reservation in Admission) Act, 2006. This is an attempt to identify the key areas where law comes into play so as to uphold the cardinal constitutional principles in identifying and fixing the appropriate quota of reservation for backward classes.

Introduction - A Peep into Facts
Earlier last year, the Parliament had effected an amendment to Art. 15 adding cl.(5) which seeks to promote, as part of the policy of protective discrimination, the educational advancement of socially and educationally backward classes of citizens, the SCs and STs through special provisions relating to the admission of students from these categories in all educational institutions.

It is to be noted at this juncture, that the Central Educational Institutions (Reservation in Admission) Act, 2006 is a significant legislative measure in the sense that it is for the first time that the Indian Parliament has recognised a law giving effect to the reservation of seats in educational institutions as an expedient measure of adhering to the constitutional provisions. Art. 46 is to be considered in the forefront in this regard as it mandates the State to promote the educational and economic interests of the weaker sections, particularly the SCs and STs, protecting them from social injustice and exploitation.

The Central Government sought to give full effect to s.3 of the Act which reserves apart from 15% & 7.5% of the seats in admission for SCs & STs respectively, a percentage equal to 27% for other backward classes. Apart from that, the Act under s.5 requires an increase in the number of seats above its annual permitted strength (for the academic session preceding the date of coming into force of the Act).

Issues Addressed in the Interim Order
The Bench, comprising of Justices Arijit Pasayat and Lokeshwar Singh Panta, in its preliminary ruling, addressed the issues not only pertaining to legal aspects, but dealt with social factors also.Some of the issues pertained to:
1. Whether the reservation granted to OBCs is arbitrary and ultra vires the provisions of Constitution?
2. Whether the method adopted to define and calculate the population figure of OBCs is appropriate?
3. Whether the benefit of reservation can be extended to the creamy-layer?
1. Reservation per se for OBCs is valid

Union of India has asserted that reservation whether in employment or in education is not violative of the basic structure or equality code of the Constitution. The provisions in the Constitution acknowledge that reservation is an integral part of the principle of equality where inequality exists. The Court noted that the issues needed deeper consideration and reserved its opinion for the final judgment. It is submitted here that the Court is most likely to take a view in consonance with the decision in M.R. Balaji v. State of Mysore, stating that amongst the decisive factors for backwardness, caste alone cannot be taken to be the sole and dominant criterion despite the presence of other relevant factors. A deviation from this view is permissible only when the caste as a whole is both socially and educationally backward as held in P.Rajendran v. State of Madras.

2. Method of determination of OBC population is Invalid

The subject matter of challenge was not only the policy of granting 27% reservation as being arbitrary and ultra vires the constitution, but also the method adopted to define and calculate the population figure of OBCs in the country. In this regard, Court held that it was not appropriate to give effect to the Constitutional provisions for affirmative action on the basis of fictitious data and assumptions. Therefore, the list of Backward Classes as given in s.2(c) of the Act was held as based on the outdated census of 1931 because since then, no there was no caste wise enumeration of the population. Moreover, the figures provided by NSSO & NHFS placed the OBC population at 41% as opposed to the Mandal estimate being 52%.One has to draw his attention to the fact that there is a need for periodic identification of the backward citizens. One of the means through which this could be done could be a survey of the entire population on the basis of an acceptable mechanism. This is because as held in the case of State of AP v. USV Balram, the Government should not act on the assumption that once a caste is considered backward, it should continue to be backward for all times. This in turn means that if once a class appears to have reached a stage of progress from which it can be inferred that no further protection is necessary, the State ought to review and revise the list of backward classes. Thus, this is may be a significant reason as to why the Court refused to go by the Mandal estimate of the population of OBCs to be 52%.

3. Exclusion of Creamy-layer
Shifting from the OBC estimate, another disputed area revolved around the inclusion of the creamy-layer within the purview of reservation under the Act. It was rightly held by the Court that the non-exclusion of creamy-layer would have an effect on the invalidity of the statute. The case of M.Nagaraj & Ors. v. Union of India serves as a guiding light wherein it was held that the creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism which is a part of the constitutional scheme. Hence, the extension of reservation benefits to creamy layer is antithetical to the very object of advancement of socially and educationally backward classes.

It is submitted that, though this is a principle for the Court to examine at length in its final judgment, the Union of India is wrong in its stand that the creamy-layer rule is applicable only to Art. 16(4) and not to Art. 15(5). This is based on the hypothesis that the chances of adequate number of OBC candidates filling the entire quota of 27% would not be possible in the event of exclusion of creamy layer. If that had been the case, then the Act should not have intended to increase the number of seats or even for that sake fixed such a high percentage for OBC reservation.

Significance of the Interim Order

The Interim Order has disregarded the Government's contentions not on blatant, but on certain valid grounds. The Supreme Court has clearly identified the crux of the Act, which needs to be fine-tuned to bring it in line with the desired constitutional mandate of reservation for backward classes.

While we wait for the final judgment of the case (scheduled for hearing in August), it would be interesting to predict that firstly, Supreme Court is likely to reiterate that caste alone cannot be made the sole determinant factor in ascertaining backwardness. Secondly, a caste once backward will not give rise to a presumption that it is will always be backward. On the other hand, a periodic review is to be done from time to time so as to exclude those who have attained the status of socially advanced persons i.e. in the sense that they have a higher level of income or are economically more sound than others in the caste. Another relevant factor to be noted is that the Supreme Court has become vigilant in its approach towards the attitude of the Central Government to gain vote bank and has emphasized that the shift should be towards talent bank. It has also stepped in to call a reminder that the policy of reservation should not be intended to be permanent or perpetuate backwardness.

Therefore, it is submitted that from a rational lawman's perspective, the higher judiciary has reiterated the considerations that have to be borne in mind while approaching the concept of reservation.

Ashoka Kumar Thakur Vs. Union of India and Ors (Complete Text judgment)

End Notes:
1. Art 15(5) Nothing in this Article or in sub-clause (g) of clause (1) of Art.19 shall prevent the State from making any special provision, by law, for the advancement of any socially 7 educationally backward classes of citizens or for SCs or STs in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Art.30.
2. s.6 of the Central Educational Institutions (Reservation in Admission) Act, 2006 requires the educational institutions shall take all steps required to give effect to the provisions of s.3, 4 and 5 of the Act for the academic session commencing in 2007.
3. Balaji v. The State of Mysore [1963] Suppl. 1 S.C.R. 439.
4. P.Rajendran v. State of Madras MANU/SC/0025/1968.
5. State of AP v. USV Balram AIR 1972 SC1375.
6. M.Nagaraj & Ors. v. Union of India MANU/SC/4560/2006.

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