The Hindu : National : ‘Article 14 mandates positive discrimination’

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Thursday, Sep 27, 2007
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‘Article 14 mandates positive discrimination’

Legal Correspondent

If new castes are included in BC list, it is because they were not considered earlier
No mechanical inclusion in Central list

New Delhi: Providing reservation to the Other Backward Classes through special provisions is a valid classification and not violative of the Constitution, Solicitor-General G.E. Vahanvati argued in the Supreme Court on Wednesday.

Appearing for the Centre before a five-judge Constitution Bench hearing the OBC quota case, he said, “This concept of positive discrimination in favour of backward classes of citizens is the mandate of Article 14 [equality before law].”

Mr. Vahanvati said, “The objective of introducing Article 15 (5) through the 93rd Constitution amendment is a positive discrimination based on the valid classification to meet the objectives of social justice i.e. providing opportunities to weaker sections.”

The petitioners argued that providing 27 per cent reservation to the OBCs would be violative of Article 29 (2), which says “no citizen shall be denied admission to any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.”

“Not discriminative”

Refuting this contention, Mr. Vahanvati said “a plain reading of Article 29 (2) shows that it does not apply if provision is made for backward classes. When the basis for classification is not solely those grounds, the same does not fall foul of Article 29 (2). The ground for classification is not ‘only’ caste but it is part of the measures to bring about equality between the unequals which cannot be antithetical to Article 29 (2). Classification made for the purpose of Article 15 (5) cannot be said to be discriminative in nature so as to attract the bar under Article 29 (2).”

Quoting an earlier judgment, he said, “The Constitution is not caste-blind. If the citizens belonging to a caste can as such be rationally assumed to be backward, the entire caste can as such be recognised as a backward class.”

He said, “Under the quota law, candidates will not be denied admission on the ground that they belong to a particular caste. The basis for denial of admission would be that seats are reserved for candidates belonging to socially and economically backward classes (SEB) and as such Article 29 (2) does not apply.”

Quoting from various reports of the Central and State Backward Classes Commissions, Mr. Vahanvati said, “The commissions applied their mind by going through the elaborate procedure on the applications for inclusion of castes in the backward classes lists.” If new castes were included it was because they had not been considered earlier.

To a question from the Bench, he said, “The national commission has till date rejected 531 cases, including sub-castes, for inclusion. It is incorrect to state the commission has mechanically allowed all applications for inclusion in the Central list.”

Compulsory education

On the allegation that the government had not done anything to provide compulsory education to children in the age group 6-14, he said, “The Sarva Shiksha Abhiyan is the national flagship programme launched in 2001-2002 for achieving the goal of universalisation of elementary education through a time-bound approach in partnership with States and local bodies.” The total outlay for the programme was Rs. 17,000 crore and these efforts helped in bringing down the number of out-of-school children from 32 million in 2001 to 10.4 million in April 2005.

Further arguments will continue on Thursday.

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