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OBC Reservation In Neet PG: Did Supreme Court Violate Principle Of Stare Decisis?

In Common law jurisprudence, doctrine of Stare decisis is inherently imbibed in the roots of justice system. Stare decisis is a Latin term which means "to stand by things decided." In short, it is the doctrine of precedent.

Courts cite Stare decisis when an issue has been previously decided on merits. In the words of Justice Marshal, US Supreme Court, Stare decisis:
Promotes the even handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.

In practice, the Supreme Court and High Courts in India usually refer to their previous decisions when the soundness of any decision is in doubt. A benefit of this principle is that a court need not continuously re-evaluate the legal underpinnings of past decisions and accepted doctrines.

 In Jai Kaur Vs. Sher Singh, the Supreme Court held that a subsequent Division Bench cannot disagree with a previous decision of the Full Bench of the same Court. Referring to the above ruling in Mahadeolal Komadia v. The Administrator General of West Bengal , the Court observed as:
"If, as we pointed out there, considerations of judicial decorum and legal propriety require that Division Benches should not themselves pronounce decisions of other Division Benches to be wrong, such considerations should stand even more firmly in the way of Division Benches disagreeing with a previous decision of the Full Bench of the same court."

 In Kamalammal vs. Venkatalakshmi, the Supreme Court deprecated the course taken by a single Judge of a High Court in refusing to follow the judgment of a Full Bench and ruled that, not only convention but also rules framed by several High Courts require that where a learned single Judge or a Division Bench does not agree with a Full Bench decision, he or they either make a reference to the Full Bench or place the papers before the Chief Justice for such a reference being made.

Concisely, as per principle of Stare decisis the division bench of Hon'ble Supreme Court was bound by the decision of larger bench and it had no option but to align with the decision of a larger bench
With due respect, the authors express that Hon'ble apex court, recently, in the case of Neil Aurelio Nunes. Vs. Union of India [NEET exam Reservation case] did not appreciate this settled doctrine of law. The top court did not pay heed to the principle of comity and stare decisis and gave decision against the Ratio Decendi of 5-Judge bench case in Ashok Kumar Thakur Vs union of India [(2008) 6 SCC 1].

In Ashok Kumar Thakur case, the five-judge bench categorically decided that the threshold for educationally backward class should be graduation, meaning thereby, if any person of the OBC category graduates, he is no more educationally backward and should be deprived of reservation based on educational backwardness. It can be inferred from the judgement of 5-judge bench that the graduates (MBBS/BDS) are ineligible for reservation in admission to post graduate courses.

The genesis of dispute lies specifically in Article 15(5) of the Constitution of India which empowers state to make any special provision for advancement of any socially and educationally backward classes of citizens for admission in educational institutions. 27% OBC reservation in educational institutions was introduced by Central Educational Institution Act, 2006 and it was challenged in Ashok Kumar Thakur (supra) before a 5-judge bench of Supreme Court.

The apex court, however, upheld the validity of 27% OBC reservation for admission in educational institutions but categorically with two caveats:
  1. The persons from creamy layer of OBC's would be excluded from reservations (unanimous decision)
  2. OBC's will not be eligible for reservation in Post graduate (PG) courses. (Decision by 3:2 majority)

In Ashok Kumar Thakur (supra) four different judgements were penned down by Hon'ble judges, Justice KG Balakrishnan (then Chief Justice), Justice Dalbir Bhandari, Justice R.V. Raveendran and one was joint judgement of Justice Arijit Pasayat & Justice CK Thakker.

While answering to the specific issue:
What should be the educational standard to be prescribed to find out whether any class is educationally backward, Hon'ble Justice Dalbir Bhandari, in his separate opinion, categorically held that:
"Once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter" [(2008) 6 SCC 1, pg. 705 & 706, para-626, and pg. 710, para-644].

Also, Hon'ble Justice Arijit Pasayat & Justice CK Thakker, in their joint opinion, while concluding their judgement held that:
"While determining backwardness, graduation (not technical graduation) or professional shall be the standard test yardstick for measuring backwardness". [(2008) 6 SCC 1, pg. 607, 608, Para- 344, 345 and pg. 626, Para- 358(5)]

Majority of judges (3:2) of the Five Judge Constitution Bench in Ashok Kumar Thakur (supra) expressly held that after graduation a person is ineligible for special benefits under Article 15(5) of the Constitution. In other words, Supreme court held that a graduate cannot claim reservation under OBC category for any post graduate degree.

The "special provisions" permitted under Article-15(5) of the Constitution of India are for Socially and Educationally Backwards Classes (SEBCs) i.e., OBC. The conjunction used between the words "Socially" & "Educationally" is "AND". This means that the classes of citizens have to be both socially as well as educationally backward to be eligible for reservations under SEBC/OBC quota. If a class is only either socially or educationally backward but not both, it is not eligible for reservations under Article-15(5) under SEBC/OBC quota.

In nutshell, Apex court introduced concept of creamy layer for both socially and educationally backward classes, but Centre/State government introduced the concept of creamy layer for socially forward OBC's only and failed to exclude the educationally forward from OBC category. This approach of State was against the very mandate of supreme court in Ashok Kumar Thakur case. The Centre/State govt. never even tried to define and identify the creamy layer on educational parameter.

As already discussed, the apex court in 2008 categorically held that there cannot be any reservation in post graduate courses but the governments, since 2008, for the sake of pleasing a certain class of citizens, never implemented the judgement of Supreme Court. The recent notification which is challenged in NEET reservation case is blatantly in the violation of 5-judge bench judgement in Ashok Kumar Thakur case. After Ashok Kumar Thakur case, State cannot grant OBC reservation in Post-Graduation [PG] courses.

The act of State granting OBC reservation in NEET PG examination itself amounts to wilful disobedience of Hon'ble apex court's order and hence can be concluded as contempt of court.

Also, when executives fail to implement the order of court, the same court is duty bound to enforce the law and protect the interests of the citizens. The petitioners in NEET-reservation case approached the Supreme Court with this objective that judgment of Ashok Kumar Thakur be enforced in letter and spirit on the foundation of stare decisis and 27% OBC reservation in NEET PG courses would be stayed by Hon'ble apex court.

But to the utter surprise, Hon'ble Supreme Court (Division bench) ignored the Ashok Kumar Thakur case and upheld the validity of 27% OBCs reservation in NEET-PG courses. It is to be noted that even if the petitioners had failed to argue the ratio decidendi of Ashok Kumar Thakur case, then also, Hon'ble Supreme Court should have considered the judgement of 5-Judge bench in Ashok Kumar Thakur case.

The recent order of the Supreme Court was passed without taking cognizance of already settled law in Ashok Kumar Thakur case. Whatever the reasons were assigned by division bench of Supreme Court to upheld the 27% OBC reservation in NEET PG examination, 2-judge bench of Supreme Court cannot by-pass the law laid down by 5-judge bench of Supreme Court.

Judicial wisdom and propriety demand that the 2-Judge bench in NEET-PG case must have aligned with the ratio decidendi of the Ashok Kumar Thakur case.
After Ashok Kumar thakur case, four petitions were filed in different High courts across India only on the ground that OBC reservation is impermissible in post graduate courses as per the Ratio Decendi of Ashok Kumar Thakur case.

On the basis of this sole argument, Calcutta High court in W.P(C) No.8872/2008 titled as Sayan Guha vs. Union of India, stayed OBC reservation in IIM Calcutta [post-graduation course]. The stay order of Hon'ble Calcutta High court also corroborates the fact that division bench of Hon'ble supreme court in NEET PG case bye-passed the law laid down by 5-judge bench in Ashok Kumar Thakur case.

By not following the principle of stare decisis division bench of Hon'ble apex court in NEET PG case has done great disservice to the rights of the non-OBC post-graduate admission seeking students.

The authors clarify that the objective of this article is to discuss the academic moot question related to doctrine of stare decisis and not the merit of the case.

Written By:
  1. Nishant Khatri is a Delhi-based lawyer and
    Email:  [email protected]
  2. Hari Mudgil is a Scholar
    Email: [email protected]

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