“The quantum of reservation mandated under the Act is justified”
Reservation itself cannot be struck down on the principle of reverse discrimination: Centre
No systematic work to identify OBCs after 1931, Centre lacks any scientific data: SC Bench
New Delhi: The Centre on Wednesday asserted in the Supreme Court that the 27 per cent quota for the Other Backward Classes in educational institutions as determined by Parliament was within the overall reservation of 50 per cent and therefore legal.
Making his submissions before a five-judge Constitution Bench headed by Chief Justice K.G. Balakrishnan, the former Attorney General and senior counsel K. Parasaran said, “The quantum of reservation mandated under the Act is justified. It is just, fair and reasonable.”
Mr. Parasaran told the Bench, comprising Justices Arijit Pasayat, C.K. Thakker, R.V. Raveendran and Dalveer Bhandari, that the quantum of reservation within 50 per cent had been determined by Parliament.
He said: “Legislative facts are conclusive and the courts do not exercise the power of judicial review by examining facts. Population is a relevant consideration in fixing the quantum of reservation.
“The Act cannot be invalidated on the ground that the exercise of the power under the Act by the Executive is bad. If, in any given case, the exercise of the power is invalid, it is that which will be invalidated and not the Act itself.”
Mr. Parasaran argued that Article 15 (5) of the Constitution, which enabled the exercise of power and the impugned Act, was not invalid on the ground of reverse discrimination.
He said, “Reservation itself cannot be struck down on the principle of reverse discrimination. It is in the nature of handicap in favour of backward classes. Reservation brings the reserved class on a level playing ground with open category applicants. Bringing them to a level playing ground by reservation cannot by itself be held to be bad as a case of reverse discrimination.”
Additional Solicitor-General Gopal Subramaniam justified the identification of socially and educationally backward classes on the basis of caste in view of the societal structure in the country. He said caste should be construed as a unit leading to reservation. The total OBC population as per the Mandal Commission was 52 per cent and as per the National Sample Survey Organisation survey, 41 per cent.
The Bench said, “Till date, you [Centre] don’t have any scientific data whether it is 41 per cent or 52 per cent. The 1931 census was taken when Burma [now Myanmar], Pakistan and Bangladesh were part of India and how can you take this as the basis now? No systematic work has been done to identify OBCs after 1931.”