New Delhi: The Supreme Court on Wednesday reserved orders on referring to a Constitution Bench the petitions challenging the legislation providing 27 per cent reservation for the Other Backward Classes in elite Central educational institutions.

The 93rd Constitution Amendment empowering the Centre and States to enact legislation on quota is also under challenge.

A Bench consisting of Justices Arijit Pasayat and L. S. Panta, after perusing the submissions made by counsel for the parties, asked Solicitor-General G.E. Vahanvati, appearing for the Centre, and Harish Salve, senior counsel for one of the petitioners, to consolidate the points and submit them on Thursday.

The Bench allowed the impleadment applications filed by the Tamil Nadu and Andhra Pradesh governments, the Rashtriya Janata Dal and the Pattali Makkal Katchi; issued notice to the respondents, and granted eight weeks for completion of pleadings.

Far-reaching

In a brief order, it said, "There is no dispute that the questions involved are of importance and have far-reaching consequences.

Various issues have been formulated by counsel for the parties and it would be desirable to consider them before referring to a larger bench."

During discussions, the Bench indicated that the broad issues should touch on whether reservation per se would violate the right to equality; whether providing reservation was valid and how long it could continue; whether reservation could be provided by removing the creamy layer; and whether economic criterion should determine backwardness irrespective of caste considerations.

93rd Amendment

Mr. Salve, in his submissions, said the issues should include "whether the 93rd Amendment in so far as it empowers the government to make special provisions by way of reservation in educational institutions is violative of the basic structure of the Constitution; whether the Amendment that confers unbridled powers on the state to make special provisions for socially and educationally backward classes is wholly destructive of the right to equality of citizens and thereby violative of the basic structure of the Constitution; and whether reservation in institutions imparting higher education (especially those of a national stature or importance and in courses categorised as speciality or superspeciality) is a permissible form of affirmative action under Article 15."

Scope of Articles 15 (4) and 15 (5)

Mr. Vahanvati said the substantial questions would include: "What is the true ambit and scope of Articles 15 (4) and 15 (5)? Whether the tests of interpretation of Articles 15 (4) and 15 (5) and Article 16 (4) are the same? Whether the concept of socially advanced persons/sections or creamy layer of castes/communities formulated in the Indra Sawhney (Mandal) case for exclusion from reservation in appointments or posts under Article 16 (4) is applicable in relation to reservation in education including higher education and admission for seats in educational institutions under Articles 15 (4) and 15 (5) and what are the parameters and limits of judicial review of a law enacted by Parliament?"

Creamy layer

Senior counsel K. Parasaran said the questions should include:

"Would the concept of creamy layer propounded in the context of public employment in the Mandal case be applicable at all to a special provision by way of reservation for education provided by law made by the state?"

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