Ending uncertainty over the controversial law providing for 27 per cent reservation for Other Backward Classes in central educational institutions including IITs and IIMs, the Supreme Court on Thursday upheld its validity but ruled that the “creamy layer” among the backwards would not get reservation.
A five-judge Constitution Bench headed by Chief Justice KG Balakrishnan upheld the Central Educational Institutions (Reservation in Admission) Act, 2006, paving the way for its implementation in all central educational institutions.
The landmark verdict comes as a major victory for the UPA government, which had to face embarrassment after the court stayed the implementation of the OBC quota law last year.
The bench, also comprising justices Arijit Pasayat, CK Thakker, RV Raveendran and Dalveer Bhandari, unanimously said the “creamy layer” must be excluded from the socially and educationally backward classes as per a 1993 government order. The government order excludes wards of people holding constitutional posts and senior government officials from the quota ambit.
Justice Bhandari asked the government to exclude the children of former and present MPs and MLAs from the purview of OBC reservation. The judges, however, clarified that the “creamy layer” concept was not applicable to Scheduled Castes and Scheduled Tribes. There should be a periodic review after five years on continuing with the OBC quota, they added.
The bench also upheld the validity of the Constitution (93rd Amendment) Act 2005 that enabled the government to enact laws providing for OBC reservation in central educational institutions, saying it did not violate the Constitution’s basic structure. It also rejected the petitioners’ contention that not extending the OBC quota law to minority educational institutions was illegal.
The exclusion of minority educational institutions from the ambit of the law did not violate the Constitution as “they (minority institutions) are a separate class and their rights are protected by other constitutional provisions,” the CJI said.
There were four judgments delivered by the five judges. While justices Pasayat and Thakker delivered a common judgment, Justice Raveendran chose to write a separate but brief judgment despite agreeing with the CJI’s detailed judgment.
The fourth judgment was that of Justice Bhandari, who declared the 93rd Constitutional Amendment as unconstitutional. He said that extending OBC quota to private institutions violated the basic structure of the Constitution as it stripped citizens of their fundamental right to carry on an occupation — running an educational institution in this case. The other judges left the question open, as there was no challenge to it from any private unaided educational institution.
The CJI emphasised: “Reservation is one of the many tools that are used to preserve and promote the essence of equality so that disadvantaged groups can be brought to the forefront of civil life.”
On the issue of determination of backward class, the CJI said it cannot be exclusively based on caste. Poverty, social backwardness, economic
backwardness, are all criteria for determination of backwardness. Justices Pasayat and Thakker said it could be done by excluding the creamy layer for which necessary data must be obtained by the Centre and state governments.
Justices Pasayat and Thakker said: "So far as determination of backward classes is concerned, a notification should be issued by the Centre. Such notification is open to challenge on the ground of wrongful exclusion and inclusion." They added that the panel set up on the orders of the Supreme Court in the Mandal case has to work more effectively and not merely decide applications for inclusions or exclusions of castes in quota list.
Justice Bhandari said: "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."
The court asked the Centre to examine the desirability of fixing cut off marks for OBC candidates, saying it would balance reservation with other societal interests. Justices Pasayat and Thakker suggested that it could be five marks less than that of the general category candidates. "It would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories," they said.
Justice Bhandari supported the view. "To maintain standards of excellence, cut off marks for OBCs should be set," he said. He said the difference in cut off marks for an OBC candidate and a general candidate should not be more than 10 for quota consideration.