SUPREME COURT JUDGMENT ON RESERVATION - CONCLUDING PART III

Justice Dalvir Bhandari delivered a separate but concurring Judgement, in a Bench of five Judges.

Hon.Justice Bhandari said that Constitutional Amendment No.93, empowering the Government to provide reservation of seats in Government aided educational institutions, would be ultra vires and invalid if the creamy layer is not excluded. Why creamy layer should be excluded? Justice Dalvir Bhandari quotes Justice Sawant in the earlier larger Bench that pronounced a Judgment on Job Reservation for Socially and Educationally Backward Classes.

“Society does not remain static. Industrialization, urbanization, the advance on political, social and economic fronts, the social movements of last several decades, the spread of education and the advantages of special provisions including reservations secured so far, have all undoubtedly seen atleast some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. Legally they are not entitled any longer to be called as part of the backward classes whatever their original birthmark.

The non-exclusion of creamy layer or the inclusion of forward castes in the lists of backward classes will therefore be totally illegal. Such illegality offending the Constitution of India cannot be allowed to be perpetuated even by Constitutional Amendment.” What an emphatic assertion!

Justice Bhandari also ordered the Government to exclude the children of the former and present Members of the Parliament and Members of the Legislative Assemblies and the Office Memorandum of Government of India be amended accordingly. . However, creamy layer exclusion cannot be extended to Scheduled Class and Scheduled Tribes, as the whole discussions even during the earlier larger Bench judgments were confined to Socially and Educationally Backward Classes only.

Imposing Reservations on unaided Educational Institutions violates the Basic Structure of the Constitution by stripping the citizens of their fundamental right under Article 19(1) (g) to carry on an occupation, according to Justice Bhandari. However, other Judges did not pronounce any Order on this, though they concurred with the observation, because none of the unaided educational institutions have challenged the constitutional amendment. About Minority Institutions, “we will take a step in the wrong direction if Minority Institutions (even those that are aided) are subjected to reservation”, Justice Bhandari added.

Justice Bhandari also observed 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’.

“It is reasonable to balance reservation with other societal interests. To maintain standards of excellence, cut off marks for OBCs should be set not more than 10 marks out of 100 below that of the general category”, Justice Bhandari added.

To sum up, in the case, Nagaraj and others Vs. Union of India, Supreme Court has beautifully summarized the context in which Reservation can be considered which Justice Dalvir Bhandari, quoted in his observation:

“We reiterate that the cutting limit of 50%, the concept of Creamy Layer and the compelling reasons namely backwardness, inadequacy of representation and overall administrative efficiency are all Constitutional requirements without which the structure of equality of opportunity in Article 16 of the Constitution would collapse”. What a fine exposition of judicial pronouncement!

So far I have briefly narrated the pronouncements of the Five Judges Bench. I now give below my own observations:

1) Three out of five Judges have opined that University Graduates should be treated as not educationally backward and therefore at the Post Graduation level, there is no need for reservation. Taking a cue from this, some have approached the Supreme Court again, pleading for the exclusion of Reservation for Post Graduate Courses (IIMs for example) and till the Court pronounces an Order on the Plea, one should not venture an opinion.

2) Again, three out of five Judges have opined that even for those eligible for Reservations,
there has to be a cut off mark, though lower than the cut off marks
for the General Candidates. There is no unanimity on the exact cut off mark concession.

3) The Highest Court of the Land in two different Benches – one a Larger Bench of
Nine Judges and the other a Five Judges Bench, has unanimously concluded that
Caste would be the starting point and that Creamy layers are to be excluded. Government has the Authority to define Creamy layer and such Governmental
definitions are subject to Judicial Scrutiny. In other words, lacuna in the Governmental Orders can be challenged in the Courts of Law.

4) Creamy layer class and Socially and Educationally Backward class are
mutually exclusive. One therefore expects, atleast the Left Political Parties, that swear by Class, to take up a principled stand on the subject. CPM has taken up
a stand( though they would not stick to it on electoral considerations) and other left parties do not have a studied position, till now.

5) As I had mentioned in my earlier article “Potential and Promise”, still all those who compete are not equals. In the 2008 IIT JEE examinations, more than 1400 successful candidates had undergone one/two years of full time study at Bansal Classes, Kota. A vast majority did not have and cannot afford this facility. What more, the educational institutions through which they pass out, do not have the requisite standard. Till all over India, identical educational standard is made available, candidates from backward institutions, but with high potential, need to be identified and protected. As the IPL has brought out potential Cricket Players to the forefront, there has to be a similar system, that would bring out the candidates with high potential. I am sure, some of the rural and backward schools have many brilliant students who need to be brought to the forefront.

If true social justice is to be done, all promising students from backward schools and colleges are to be brought to limelight and enabled to brush shoulders with the bright and well bred ones.

SUPREME COURT JUDGMENT ON RESERVATION - PART II

In Part I, I presented the summary of the judgment of Hon. chief justice .Balakrishnan. In this part II, I give gist of the judgment pronounced by Hon. Justice Dr.Paschayat, who delivered the judgment on his behalf and also on behalf of another member of the Bench – Hon. Justice Thakkar.

Hon. Justice Dr.Paschayat agreed with the Chief Justice that as held by the larger Bench in the Indira Sahney case, Constitutional Amendment No.93, inserting sub-clause 5 to Article 15, was not in violation of the Fundamental Rights portions of the Constitution. He also drew support from the earlier larger Bench of the Court in the Indira Sahney case that to begin with, Caste could be the basis. This is because, though poverty was the prime cause for Social and Educational backwardness, caste factor further aggravates the backwardness. Secondly the special treatment relates to a class and not to individuals. Therefore, in his opinion, other Backward Castes, as determined by the Commission for the purpose, set up by the Government, in conformity with the recommendations of Supreme Court in the earlier Indira Sahney case, would constitute the socially and educationally backward classes, after the Other Backward castes are ridden of ‘creamy layer’. Including the Creamy layer of the other Backward Castes and the forward castes in the reservation eligibility category would violate Article 15 and 16 of the Constitution as un-equals would be treated as equals. Other backward Castes, cleansed of Creamy layer, alone would become Socially and Educationally backward classes eligible to be treated differently for the purpose of public employment and higher education. However, the Socially and Educationally Backward Classes list, as prepared by the Government, is subject to judicial scrutiny. Wrongful inclusions and exclusions can be challenged by writs.

Justice Paschayat points out that the backward classes need justice, the general classes demand equity and the interest of the State mandates excellence in education and services. Therefore to properly identify the classes that need support, Justice Paschayat suggests that the list of Socially and Educationally Backward Classes is to be reviewed every five years ( Chief Justice Balakrishnan suggested every ten years). To weed out the educationally advanced, Justice Paschayat recommends a cut off minimum educational qualification- University graduation. Chief Justice Balakrishnan did not recommend any cut off qualifications. In the opinion of Justice Dr.Paschayat, the University Graduates are educationally advanced and therefore there need be no reservation at the Post Graduation level.

As a compromise between reservation for socially and educationally backward classes and the need for excellence in Society, a minimum cut off marks - five percent less than the cut off marks for General Candidates should be the minimum requirement for Reserved category Students, Justice Paschayat feels.

Justice Paschayat also said that though running a Private unaided educational institution is a profession and hence is protected by the fundamental rights provisions of the constitution, in as much as no Private Institution has challenged the Constitutional Amendment 93, he is not pronouncing any Order on it.

Thus, while agreeing with the Chief Justice that Constitutional Amendment 93 was legal and that providing reservation of seats for Socially and Educationally Backward Classes after the creamy layer are taken out of the eligibility list, he also suggested a reduced review period of five years, a cut off qualification and a cut off mark of 5 marks lesser than the cut off mark of the general candidates. For the selection of candidates for post graduate courses, no reservation need be done, Hon. Justice Paschayat reiterated.