On March 29, 2007, the apex court passed an interim order staying the operation of Section 6 of a 2006 Act providing for 27 per cent reservation for OBCs in respect of admissions to central educational institutions. The reactions ranged from euphoria to use of derogatory language about the court and its alleged class bias. The apex court is as fallible as other institutions and is liable to stringent criticism of its judgments and orders. But attribution of motives or personal comments is deplorable. What follows is a legal analysis to demonstrate that the order did overstep constitutional limits in staying a statutory scheme — it is not a normative discussion of whether we should or should not have OBC reservations.
The court summarised several arguments of the petitioners spanning a wide spectrum, but passed the interim order based only on two principal contentions. It found merit in the contention that the basis of the reservation was the 1931 Census, which had not been updated, reconducted or otherwise verified. Hence, the factual foundation for the reservation was non-existent or at least doubtful. Second, the court emphasised the vital importance of a creamy layer cut-off and concluded that since this was not provided in the Act, the matter was liable to be stayed.
It is undeniable that special affirmative schemes and quotas for backward classes (BC) are an intrinsic part of the Constitution. That is why the constitutional articles proclaiming equality are immediately followed by a qualification regarding special provisions for BCs. For example, Article 15 prohibits discrimination on account of race, sex, religion, caste or place of birth, but immediately qualifies itself (in Article 15 (4)) by saying that nothing in this Article shall prevent the making of special provisions for the advancement of OBCs. Indeed, this was inserted by conscious and deliberate amendment in 1951. Similar is Article 16 (4), which operates specifically for employment in public service.
Given this unambiguous constitutional text, the interim order appears to suffer from a certain degree of gratuitous dicta when it opines, and that too in an interim order, that “nowhere else in the world do castes, classes or communities queue up for the sake of gaining backward status. Nowhere… is there competition to assert backwardness and… to claim that we are more backward than you.” One is certainly entitled to that opinion but when converted to judicial dicta, it treads directly on policy prescriptions sanctified by constitutional text. Since this could not have been the basis of the interim order, it was superfluous and unnecessary.
The order appears to overlook the larger picture, while repeatedly adverting to the earlier nine-judge Mandal judgment. No one can deny that this upheld government orders providing for the same quantum of reservation for OBCs in public employment. It is clear that the concept of OBC reservation, its quantum, relevance and constitutional validity were all upheld by nine judges of the apex court. What was the factual basis of that scheme? Obviously, the same 1931 Census. If that database, as projected, used and analysed by the Mandal Commission and, since then, by several other expert bodies is good enough to operate OBC reservations in government employment for the last 16 years, how can it suddenly, and that too by an interim order, be the basis for a stay order on a central statute?
Another critical area where the order appears to have erred is in brushing aside the contention of the government regarding provision for enhancement of total seats in a graded, phased manner in the process of implementing OBC reservations. Assuming that there was an element of constitutional unreasonableness in the 2006 Act, that legal vice was removed by the provision for substantial increase in the total pool of seats. The apex court brushed aside this significant aspect saying, “If there is possibility of increase in seats in the absence of reservation, it could have gone to the general category… By increasing the number of seats for the purpose of reservation, unequals are treated as equals.” If Mandal, without any added reasonableness of overall increase of seats, is constitutionally valid, surely the present Act with an inherent provision lessening the impact on the general category would, much more so, be valid. Moreover, the concept of increase in total seats can’t be viewed individually or separately, as the apex court appears to have done; It comes as an integral part of the reservation package.
It is no doubt true that OBC reservations have been tempered in the Mandal judgment by application of a creamy layer cut-off. A final decision on the 2006 Act may or may not factor that aspect in deciding its reasonableness. But it is unusual to do so at an interim stage. Moreover, the creamy layer principle touches, at best, only the degree and tailoring of reservation and not on its per se applicability, which has been fully stayed by the apex court.
It is, of course, possible for the apex court to take note of these and other aspects to modify, clarify or otherwise revise this interim order on a suitable application by the government.
Abhishek Singhvi is MP, Senior Advocate and National Spokesperson, Congress