SC allows 27% quota for OBCs-India-The Times of India
SC allows 27% quota for OBCs
11 Apr 2008, 0402 hrs IST,Dhananjay Mahapatra,TNN
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NEW DELHI: The Supreme Court on Thursday upheld OBC quota in central educational institutions clearing the way for reservation of 27% seats for "backward" castes over a period of three years from the academic year 2008-09.

However, what would have been unadulterated joy for the OBC leadership — which campaigned relentlessly for pushing the frontier of the backward quota to educational institutions — has been tempered with the five-judge constitution Bench headed by Chief Justice K G Balakrishnan unanimously deciding to keep the "creamy layer" out of the purview of the quota, and recommending review of the quota every five years.

The court also said that the quota would not stretch beyond graduation courses, in a ruling which created doubts whether reservations could be extended to the prestigious IIMs.

The court, in a stance that would cause considerable heartburn among the advanced sections of "backwards", held that a backward student becomes educationally forward the moment he obtains a graduation degree. This means that while 27% OBC quota could be applied for MBBS and graduation degrees in IITs, it would not be available for postgraduation and other higher courses like PG in medicine and master's courses in IIMs.

In fact, some quarters felt that since the prestigious management institutions take only graduates, the judgment may have rendered them off limits for the OBC quota.

Some experts argued that as the entry level courses at IIMs fetched only diplomas, they would be covered by the OBC quota. The confusion caused IIM-Ahmedabad to declare by evening that it was putting implementation on hold, just after it had announced that it was all set to introduce the OBC reservations.

Taken as a whole, the verdict suggests that while the bench upheld the 93rd constitutional amendment enabling the government to provide for 27% reservation as also the Central Educational Institutions (Reservations in Admissions) Act, 2007, it did not disregard the concern of the petitioners entirely.

The bench rejected the argument of the petitioners that the law at stake was violative of the "basic structure of the Constitution".

At the same time, however, its unequivocal no to the inclusion of "creamy layer" suggests that it was mindful of the risk of the privileged among the backwards — who can easily hold their own against their "forward" counterparts — hogging all the quota benefits.

The concern also shows through the court's stress on periodic review of the educational advancement of the castes so as to exclude them once they cross the threshold of backwardness, a clear response to the criticism that the beneficiaries develop vested interest in backwardness in order to cling to the quota.

The court also tried to balance provisions in the Constitution for affirmative action with the concern that quota should not result in merit being jettisoned altogether. It said that the cut-off marks for OBCs could not be substantially lower than that prescribed for general category candidates. On the creamy layer, the court suggested that the government should include the children of former and present MPs and MLAs to the "creamy layer" list by amending the 1993 office memorandum issued by the ministry of personnel.

The bench comprising the CJI and Justices Arijit Pasayat, C K Thakker, R V Raveendran and Dalveer Bhandari, unanimously said, "There must be periodic review as to the desirability of continuing operation of the statute (law). This shall be done once in every five years."

By a majority, Justices Pasayat, Thakker and Bhandari outlined the parameter "as to who should be classified as backward" and came out with the criteria that once a backward class student passes graduation he would not be eligible to seek admission in postgraduation courses under the SEBC quota.

Justice Pasayat and Thakker said, "While determining backwardness, graduation (not technical graduation) or professional shall be the standard yardstick for measuring backwardness." Agreeing with them, Justice Bhandari said, "Once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special benefits (quota) for post-graduate and any further studies thereafter.’’ On the ‘‘merit gap" between quota beneficiaries and general category, Justices Pasayat and Thakker took a strict view and said a maximum relaxation of 5% marks could be given to OBC candidates.

However, Justice Bhandari said the relaxation could be a maximum of 10%. He said, "To maintain standards of excellence, cutoff marks for OBCs should be set not more than 10 marks out of 100 below that of the general category."

Though the court upheld the validity of the 93rd constitutional amendment as well as the CEI Act, four out of the five judges said it had not tested the applicability of these two to private, unaided and minority educational institutions in the absence of a challenge from an aggrieved party. But this did not deter Justice Bhandari from holding that OBC quota could not be applied to private, unaided and minority educational institutions as it would run afoul of the fundamental right to carry on an occupation.

"Reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution," he said. The court also clarified a confusion regarding applicability of creamy layer criteria to SCs and STs, as was observed in an an earlier judgment. Chief Justice Balakrishnan and Justices Raveendran and Bhandari concurred through their separate judgments that the creamy layer criteria could not have any application to SCs and STs as they were a separate category altogether.

"Right from the beginning, the SCs and STs were treated as separate category and nobody ever disputed identification of such classes. So long as 'creamy layer' was not applied as one of the principles of equality, it cannot be applied to SCs and STs... We make it clear that for the purpose of reservation, the principles of 'creamy layer' are not applicable for SCs and STs," the CJI said.
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