Taking note of the “considerable importance” of issues involved and their likely impact on social life of the country, the Supreme Court on Wednesday referred to a larger bench the petitions challenging the 93rd Constitutional amendment and the law providing for 27 per cent OBC quota in central educational institutions.
A Bench headed by Justice Arijit Pasayat, which framed as many as 30 constitutional questions to be considered by the larger bench, directed that the records be placed before Chief Justice K G Balakrishnan for appropriate orders.
Besides questions on the validity of the 93rd amendment and the OBC quota law, important questions formulated by the court included whether caste-based reservation is permissible under Article 15 of the Constitution? If yes, what are the criteria for identification of the “classes” sought to be given benefit of reservation and whether it was inherently divisive and incompatible with the unity and integrity of the nation? Further, Whether substitution of the expression “socially and educationally backward classes” by “socially and economically backward classes” would result in fulfilling constitutional intentions and objectives”.
The Bench that had on March 29 stayed the implementation of the Central Educational Institutions (Reservation in Admission) Act, 2006 from the academic year 2007-08, chose to use the expression “considerable importance” for the issues involved.
In fact it clarified that the order to refer the matter to a larger Bench was “untrammeled by the effect of Article 145(3)” of the Constitution that required matters involving “substantial questions of law” requiring interpretation of constitutional provisions to be heard by a bench of five judges.
Later, Justice Pasayat’s Bench had also turned down the Centre’s plea for vacating the stay and posted the case for hearing in the third week of August but the date was advanced to May 8 after the Government approached Chief Justice K G Balakrishnan.
Now it is highly unlikely that the OBC quota law would be implemented from the coming academic session as setting up a larger Bench during the summer vacation would not be possible as most of the judges would not be available.
The Constitutional Questions to be considered by larger bench of SC are:
i) Whether 93rd Constitutional Amendment Act, 2005 and Article 15(5) are unconstitutional as being violative of the basic structure of the Constitution? Whether empowering the Governmrnt to make special provision for “socially and educationally backward classes” including in private educational institutions is violative of the basic structure of the Constitution and whether it confers unbridled power on the State without indicating the time limit?
ii) Whether depriving the protection of Article 19(1)(g) to non-minority institutions (while excluding monority institutions from Article the purview of OBC quota law) is inconsistent with the SC judgment in P A Inamdar case which held that non-minority institutions enjoyed similar protection and whether it upsets the delicate balance of the Constitution and goes against the principle of secularism and basic struicture?
iii) What is the true scope and ambit of Articles 15(4) and 15(5) of the Constitution and what is the meaning of the words “socially and educationally backward classes?
iv) Whether substitution of the expression “socially and educationally backward classes” by “socially and economically backward classes” would result in fulfilling constitutional intentions and objectives”
v) Whether the reservation can be provided in higher educational institutions, particularly those of national repute and super speciality courses?
vi) Whether national policy of affirmative action that would ensure imparting free and compulsory education to the illiterate sections among all citizens is absent and, if so, would the affirmative action in favour of SEBCs is unconstitutional?
vii) Whether the concept of ‘creamy layer’ formulated in Indra Sawhney case for exclusion of the affluent among the OBCs from the purview of reservation in government jobs under Article 16(4) is application to reservation for OBCs in educational institutions under Article 15(5) of the Constitution?
viii) Whether caste-based reservation is permissible under Article 15 of the Constitution? If yes, what are the criteria for identification of the “classes” sought to be given benefit of reservation and whether it was inherently divisive and incompatible with the unity and integrity of the nation?
ix) Whether reservation for OBCs under the Central Educational Institutions (Reservation in Admission) Act, 2006 without any time limit is permissible under the scheme of the Constitution?