Mahadevan's Monologues

If we had the vision and feeling of ordinary human life, it would be like hearing the grass grow and the squirrel’s heart beat and we should die of that roar which lies on the other side of silence. – George Eliot

Thursday, May 01, 2008

SUPRME COURT JUDGEMENTS ON RESERVATION - PART I

The Recent Supreme Court Judgment, upholding the Constitutional validity of making special provisions for Socially and Educationally Backward Classes of Citizens in Educational Institutions, has evoked divergent responses. While those who wanted Caste alone should be the criterion in deciding backwardness, find the ‘creamy layer’ concept, irksome and unacceptable, those who are opposed to reservations ‘per se’ feel let down because the Highest Court has accepted the concept of caste based reservations. Neither group have understood some of the implications and salient features of the Judgment and hence I thought I should objectively but briefly explain the judgment in lay terms, though I do not claim any special knowledge. There are in all three judgments delivered separately and therefore I shall deal with them in three Parts. I start with the judgment pronounced by Honorable Chief Justice Shri Balakrishnan, in the first part.

The 93rd Constitutional Amendment Act added a new sub-section (5) to Article 15 of the Constitution. This new sub-section empowers the Central Government to frame Rules, providing for special treatment of Socially and Educationally Backward Classes of Citizens in regard to admission in Central Government established or aided educational institutions and also in private institutions with or without Government aid, except Minority Institutions. A group of Petitioners challenged the 93rd Amendment and the subsection (5) of Article 15 that enabled Central Government to frame such Special rules. This challenge was based on the ground that the Constitution Amendment sought to take away the fundamental rights of Citizens, that Caste not to be identified with Class and that those who reached certain levels of education be excluded from the ‘Socially and Educationally Backward Class’ etc. The Petitioners also contended that “Socially and Educationally Back Class of Citizens were not properly identified and that the whole purpose of extending such a benefit had political overtones without any actual sympathy for the socially and educationally backward class of people. It was also contended that running Private Unaided Institutions was a profession as held in the T.M.A. Pai case and that such a profession should not be interfered with by the Government.

Honorable Chief Justice Balakrishnan relied on the earlier Keshavananda Bharati Case, where a larger Bench pronounced that Fundamental rights could be abridged and amended but not abrogated altogether. The Chief Justice added that such amendments and abridgements could be done in pursuing the provisions of Preamble of the Constitution and its Directive Principles, without tinkering with the Basic Structure of the Constitution, As amending or abridging Fundamental Rights was not frowned upon by the Constitution so long as it was not abrogated, the Honorable Chief Justice Balakrishnan brushed aside this objection of the Petitioners.

Coming down to Caste based reservations, Chief Justice Balakrishnan referred to the Indra Sawhney case which followed the Mandal Commission recommendations, where the Court accepted the concept of caste as a beginning point and a determining factor in identifying the Socially and Educationally Backward Classes of Citizens for reservations to employment in governmental institutions, after eliminating the creamy layer. Caste is a homogenous group. It is an association of families which practice the custom of endogamy. In a Caste group, status, occupation and culture have become hereditary. Class is a homogenous unit from the point of view of status and mutual recognition. Backward Caste Commissioners both at the state and central level have avowed that every representation for inclusion in the Socially and Educationally Backward Class has been examined and that a number of castes have been included and also a number of castes have not been accepted. Therefore, the first identifiable group to constitute the eligible class is "Caste".

Honorable Chief Justice explained why Creamy layer should be excluded. Constitution makes special provision for Socially and Educationally Backward Classes and if the Creamy Layers are not excluded from the Other Backward Caste ( OBC), they would continue to be Other Backward Caste only and would not become Socially and Educationally Backward Class. Thus, the injection of the concept of “Exclusion of Creamy Layer’ alone makes the OBC Socially and Educationally backward Class and this concept is an inseparable part of Socially and Educationally Backward Class. While clamouring for deletion of ‘Creamy layer’ concept, the Champions of Reservation have not understood and appreciated this important observation made by the Chief Justice. As one goes up to become a member of the ‘Creamy layer’, one ceases to be a member of the Socially and Educationally backward Class and thus renders himself ineligible for differential treatment. The Scheduled Castes and Scheduled Tribes are defined separately and they do not form part of Socially and Educationally Backward Class. Therefore, the Creamy Layer concept is not applicable to them. The Creamy Layer also distinguishes the SC and ST from the Socially and Educationally Backward Class. If the Creamy Layer concept is taken away, the Socially and Educationally Backward Class becomes at par with the SC and ST which was not contemplated by the Constitution. Thus, creamy layer is the main instrument in identifying ‘Socially and Educationally Backward Class’. To be included in the Socially and Educationally Backward Class, the eligible Castes need to rid themselves of the Creamy Layer among them. The Chief Justice was emphatic that the inclusion of Creamy Layer would keep the rest in perpetual backwardness.

Central Government’s definition of Creamy Layer, published in 1993, would be the basis for determining Socially and Educationally Backward Classes now. While Constitutional Amendment cannot be challenged except on the ground that the basic structure of the Constitution is altered or that the procedures as laid down in Article No.368 has not been followed; Government’s Notification can be subject to Judicial Review, if any caste is unjustifiably included or excluded. This is because the power to amend the Constitution is a Constitutional Power whereas the Power to make other laws is the Legislative Power. The latter is subject to judicial review whereas the former has to be tested in the Constitution itself.

Honorable Chief Justice Balakrishnan has not pronounced any Judgment on whether Reservation Provision could be extended to Private Unaided Institutions as so far no Educational Institutions have challenged the Provision. In the light of the Chief Justice’s observations and also earlier TMA Pai case, if any Private Educational Institution challenges the provisions of the added sub-section (5), in all probability, the objection would be sustained. In that case, like Minority Institutions, these Private Institutions would also be exempted from the Reservation Provisions. Private unaided Educational Institutions may note this.

Minority Institutions are exempted from the provisions as they are governed by different Regulations.

As Creamy layer status renders a Caste group, ineligible to be member of the Socially and Educationally Backward Class, it is necessary to have periodical review of the status of the Caste group. Honorable Chief Justice suggests a 10 years Review. Thus, after every ten years, a Review would be undertaken to ascertain whether a particular Caste group has reached the creamy layer status and needs to be deleted from the Socially and Educationally backward Group. Similarly, new inclusions in the Socially and Educationally Backward Class also needs scrutiny, may be a judicial scrutiny, before such inclusion. The Chief Justice has categorically pointed out that ’It is the constitutional duty of the Parliament to review such affirmative actions as and when the social conditions require’.

Honorable Chief Justice rejected the submission that 12th standard pass be accepted as the cut off stage for ceasing to be “Educationally Backward” though he has not spelt out as to what should be the cut off stage.

Thus, Social Justice Protagonists should feel happy that Caste has been taken as the basis at the entry point and ‘Merit' per se people should find satisfaction in creamy layer concept and the 10 year review and also derive satisfaction from the fact that the arrangements are not perennial.

I have merely explained in brief, in lay language, the Judgment delivered by the Honorable Chief Justice, wihout allowing the judgement to be coloured by my opinion. I have tried my utmost to use lay language, though at places am compelled to retain the judicial phrases, in order not to loose the essence of the expression.

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