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.