The anti-quota petitioners on Wednesday requested the Supreme Court to reconsider its 1992 verdict in the Indra Sawhney case (Mandal Case) recognising caste as a basis for identification of backward classes for the purpose of reservation in central government jobs.
This request made before a five-judge Constitution bench headed by Chief Justice KG Balakrishnan to reconsider the nine-judge constitution bench ruling in the Mandal case in fact amounted to submitting that the court should refer the matter to an eleven-judge bench.
The court is hearing petitions challenging the validity of the Central Educational Institutions (Reservation in Admissions), Act, 2006 providing for 27 per cent reservation for OBCs in elite institutions, including IITs and IIMs.
Appearing for the PV Indiresan and others, senior counsel Mukul Rohtagi said: "For the first time the Mandal Commission talked of caste as a basis for giving reservations and unfortunately the Supreme Court recognised it as a starting point for identification of backward classes in the Indra Sawhney case."
He emphasised that the Constitution does not recognise caste as a basis for identification of backward classes and therefore there cannot be any caste-based quota system in the country as there was no legislative sanction for that.
However, the court defended the Mandal verdict saying the judgment had recognised caste as one of the factors for identifying a backward class. "If the Indra Sahney judgment had said that caste alone and without excluding the creamy layer is the basis for identification of backward classes, your argument would have been right…It says it (caste) is only a starting point…If you say caste cannot be a criterion for identification of backward classes, you must provide an alternative for that," the bench said.
Rohtagi argued that even Dr BR Ambedkar had said that 'caste' was anti-national. He submitted that the Mandal case verdict required to be reconsidered because the specific requirement of periodic revision as stated in Section 11 of the National Commission for Backward Castes Act, 1993 and in Para 847 of Indra Sawhney's case have not been followed, and as a consequence, the prevailing lists have swelled to include several thousand 'castes' which are treated as backward 'classes'.
He said that Articles 15(1). 16(1) and 29(2) of the Constitution clearly laid down prohibition of caste as a factor in State actions including public employment and admission to educational institutions.