New Delhi: The Supreme Court, while interpreting the provisions of the Central Educational Institutions (Reservation in Admission) Act, 2006, will examine whether quota based solely or principally on caste is impermissible under Article 15 of the Constitution.

It will also go into "whether reservation that relies significantly on `caste' to identify its beneficiaries is inherently divisive and incompatible with the unity and integrity of the nation," a Bench, consisting of Justices Arijit Pasayat and L.S. Panta, said on Thursday.

Special provisions

If the answer to the two questions is "yes," then "how, in what way and on what basis are the beneficiaries of `special provisions' to be identified,

selected, included or excluded? Does the Union of India's method, manner and extent of identifying and compensating beneficiaries of `special provisions' perpetuate caste and backwardness?"

"Whether `caste-based' reservation is a permissible form of affirmative action under Article 15? If the answer to the question above is in the affirmative, then what are the permissible criteria for the identification of the `class' to whom the benefits under an affirmative action programme are to be extended under Article 15?"

Whether the reservation policy of the state, which lacks a Continuous Review Mechanism, is violative of Articles 14, 15, 21 and 29(2)?

Whether, after the judgment in Indra Sawhney's (Mandal) case, the classification of backward classes on the basis of caste for purposes of Article 16(4) would equally apply to Articles 15(4) and 15(5)? Whether 27 per cent reservation for the Socially and Educationally Backward Classes (SEBCs/Other Backward Classes is justified?

Whether the Act in so far as it mandates 27 per cent reservation in all educational institutions (including private aided institutions) irrespective of and unrelated to the "compelling need" of the state and without any limit of time and without any computable data for identification of persons as OBCs is violative of Articles 14,15, 21A and 29(2)?

Is the special provision by way of reservation of 27 per cent for the OBCs in Central educational institutions within the percentage authorised in Indra Sawhney's case? As for the averment that there will be an increase of seats so as not to diminish the number of seats available for the non-reserved category, the question is: could such a provision be held unconstitutional?

Whether the Act is violative of Articles 14, 15(1), 19, 21 and 29(2)?

Creamy layer

Would the concept of "creamy layer" at all be applicable to a special provision by way of reservation for education provided for by law made by the state?

Whether the provisions of the Act in so far as they do not exclude or make a provision for identification and exclusion of the "creamy layer" from the beneficiaries of reservation fall foul of Articles 15 and 29(2)?

Whether the reasons given by the Union and the data furnished by it to justify and sustain the Act satisfy the requirements of a valid exercise of affirmative action as laid down in various judgments and whether they can provide a valid basis for reservation of the kind sought to be attained by the impugned Act?

Whether the Act is in violation of Article 26 of the Universal Declaration of Human Rights, which postulates that technical and professional education be made generally available and higher education be equally accessible to all on the basis of merit?

The other questions include: What is the true ambit and scope of Articles 15(4) and 15(5) of the Constitution? If Article 15(5) is valid, what is its true scope and ambit?

What is the meaning of the term "special provisions" in Articles 15(4) and 15(5)? Does it include "quotas" by reservation of seats especially in higher education institutions and professional and technical education institutions (particularly those of a national stature or importance and in courses categorised as speciality or superspeciality)? Is it a permissible measure of advancement of the SEBCs? If the answers to the above questions are in the affirmative, then what are the necessary ingredients of any "affirmative action" programme of the state including the "nature and extent" of the benefits proposed and the limitations thereon, in order to balance the rights between Articles, 14, 15, 29(2) and its "facet" in Articles 15(4) and 15(5)?

Whether a rational policy of affirmative action that will ensure free and compulsory education to the illiterate sections among all citizens including the backward classes is absent and, if so, whether affirmative action in favour of the SEBCs is discriminatory and unconstitutional?

What is the meaning of the words "for the advancement of any socially and educationally backward classes of citizens" in Articles 15(4) and 15(5)? What is the yardstick for measuring educational backwardness under Clauses (4) and (5) of Article 15?

Whether substitution of the expression "socially and educationally backward classes of citizens" by "socially and economically backward classes" would result in fulfilling constitutional intentions and objectives?

The Bench, while framing these questions, said, "it is needless to say that the larger Bench hearing the matter can consider further issues or questions involved."

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