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Caste can be the basis to determine backwardness, rules Supreme Court

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AFTER THE VERDICT: A media briefing underway outside the Supreme Court in New Delhi on Thursday, soon after its conditional order, upholding the Union Government’s 27 per cent reservation for the Other Backward Classes in Central educational institutions.
AFTER THE VERDICT: A media briefing underway outside the Supreme Court in New Delhi on Thursday, soon after its conditional order, upholding the Union Government’s 27 per cent reservation for the Other Backward Classes in Central educational institutions.

J. Venkatesan

“OBC should be deemed to mean SEBC after exclusion of creamy layer”

New Delhi: The Supreme Court has held that caste can be the basis for determining Socially and Educationally Backward Classes (SEBCs) for providing 27 per cent reservation in Central higher educational institutions.

Writing the main judgment, Chief Justice K.G. Balakrishnan said: “Though for the purpose of convenience, the list is based on caste, it cannot be said that backward class has been identified solely on the basis of caste. The only possible objection that could be agitated is that in many of the castes included in this list, there may be an affluent section (creamy layer) which cannot be included in the list of SEBCs.”

He added: “When socially and educationally backward classes are determined by giving importance to caste, it shall not be forgotten that a segment of that caste is economically advanced and they do not require the protection of reservation.”

Referring to the arguments made on behalf of the Pattalai Makkal Katchi, a political party based in Tamil Nadu, that the exclusion of the creamy layer would not apply to educational institutions, the Chief Justice stated: “They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the ‘creamy layer’ principle is not applied, it could easily be said that all the castes that have been included among the SEBCs have been included exclusively on the basis of caste.”

The Chief Justice further stated that “by excluding those who have already attained economic well-being or educational advancement, the special benefits cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary resulting in reverse discrimination.”

He said that without excluding the creamy layer, the SEBC list would not be valid. “As far as the parameters for identification of creamy layer are concerned, the office memorandum dated September 8, 1993 (specifying upper income limit of Rs.2.50 lakh per annum and giving categories of persons excluded for availing reservation) may be applied. OBC should be deemed to mean SEBC after exclusion of creamy layer.”

Justice Arijit Pasayat, for himself and Justice C.K. Thakker, stated: “For implementing the [quota] statute creamy layer must be excluded. The Central government shall examine as to the desirability of fixing cut-off marks in respect of candidates belonging to the OBCs. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories.”

Mr. Justice Pasayat stated: “So far as determination of backward classes is concerned, a notification should be issued by the Union of India after exclusion of the creamy layer for which necessary data must be obtained by the Central and State governments. To strike the constitutional balance it is necessary and desirable to earmark certain percentage of seats out of permissible limit of 27 per cent for socially and economically backward classes.”

He further said: “For identifying backward classes, the Commission set up pursuant to the directions of this court [in the Mandal case judgment] has to work more effectively and not merely decide applications for inclusion or exclusion of castes. While determining backwardness, graduation (not technical graduation) or professional [graduation] shall be the standard test yardstick for measuring backwardness.”

Referring to the petitioners’ submissions, quoting parliamentary proceedings, that the law was rushed through Parliament, Mr. Justice Pasayat said: “The courts should not normally critically analyse proceedings of Parliament. This flows from a very fundamental aspect, i.e., mutual respect of Parliament and the judiciary for each other. Each of these great institutions in a democracy would not criticise the manner of functioning of another wing. That would be against the basic desirability of mutual respect. Any opinion or comment or criticism about the manner of functioning of one by the other would be not only undesirable but imperatively avoidable.”

Justice R.V. Raveendran broadly agreed with the Chief Justice and said: “Failure to exclude creamy layer would render the quota law unconstitutional. The Act is valid if definition of OBC is clarified.”

In his judgment, Justice Dalveer Bhandari agreed with Mr. Justice Pasayat and said that “once a candidate graduates from a university, he must be considered educationally forward.”

While largely agreeing with the other judges, he said: “I nevertheless believe that caste matters will continue to matter as long as we divide society along castelines. Caste-based discrimination remains. Violence between castes occurs. Caste politics rages on. Where casteism is present, the goal of achieving a casteless society must never be forgotten.”

Stressing the need for grater emphasis on primary education, Mr. Justice Bhandari said: “Government priorities have to be changed. Current laws are insufficient. Central government should enact a legislation to provide incentives to economically backward children so that they send children to schools. The law should provide penalties and imprisonment for errant employers.”

Mr. Justice Bhandari said: “I further urge the government to exclude the children of former and present Members of the Parliament and Members of Legislative Assemblies.”

He suggested that the office memorandum dated September 8, 1993 be amended accordingly.

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