After dithering for over a fortnight, the Centre finally moved the Supreme Court on Monday with a request to constitute a five-judge bench to decide the petitions challenging the law providing for 27 per cent reservation for the OBCs in elite central educational institutions and the 93rd Constitutional amendment.
In its 53-page application, the Centre also requested the court to “clarify the March 29, 2007 order does not stay the operation of the Central Educational Institutions (Reservation in Admissions) Act, 2006.”
Alternatively, it urged the court to vacate the stay on the operation of the Act and permit admissions in the central educational institutions in accordance with it.
Interestingly, the application said that according to one view in certain constituents of the Union Government the judgement may not be construed as a an order of stay but only an advice to the government. It urged the court to “clarify and confirm that the order dated March 29 is not an order directing stay of the implementation of the Act and is in the nature of advice to the Central Government as to the course of action that may appropriately be undertaken.”
Citing Article 145(3) of the Constitution, the Centre said since the case involved substantial questions of law, interpretation of various provisions, constitutional framework in regard to separation of powers and the scope of equality clauses (Articles 14, 15 and 16), it should be heard by five judges.
Solicitor General GE Vahanvati mentioned the application before a Bench headed by Justice Arijit Pasayat, who asked him to approach the Bench that passed the order. Justice Pasayat, who had passed the order along with Justice L S Panta, was on Monday sitting with Justice D K Jain.
The Centre is likely to mention the matter before the Chief Justice on Tuesday.
The Indian Institutes of Management have already set April 21 deadline failing which they would be forced to go ahead with admissions without OBC quota. Indian Institutes of Technology and All Indian Institute of Medical Sciences too could go the same way.
Notably, the Centre has expressed its opposition to the exclusion of "creamy layer" from the purview of OBC reservation, saying this concept was not applicable to reservation in education.
In a blow to the UPA Government’s reservation policy, the apec court had on March 29 stayed the controversial law providing for 27 per cent quota for OBCs in elite central institutions from the academic year 2007-08.
The court stayed the Central Education Institutions (Reservation in Admission) Act, 2006 notified in January 2007, saying the 1931 census figures (relating to undivided India) could not be relied upon to determine backwardness of the castes sought to be given the benefit of the law. “What may have been relevant in 1931 census may have some relevance but can not be the determinative factor,” it had held.
However, the Centre said the attack was based on a misconception and that the 1931 census did not have even a remote connection with the identification of OBCs.
“…they (OBCs) are identified only on the basis of the country-wide socio-educational field survey and the census report of 1961 particularly for the identification of…tribes…and lists of OBCs notified by various states. It was only after the identification of OBCs, the (Mandal) Commission was faced with the task of determining their population percentage and at that stage 1931 census became relevant.” It said “in fact, the identification of classes by the Commission was based on the realities prevailing in 1980 and not in 1931,” it said.