Online edition of India's National Newspaper
Thursday, Aug 09, 2007
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Online edition of India's National Newspaper Thursday, Aug 09, 2007 ePaper |
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Front Page
J. Venkatesan
No data to establish the exact social malaise sought to be remedied Beneficiaries with a necessary degree of specificity need to be identified
NEW DELHI: The Central legislation providing for 27 per cent reservation for Other Backward Classes (OBCs) in elite educational institutions would only create a vested interest in backwardness, argued senior counsel Harish Salve in the Supreme Court on Wednesday. Making his submissions before a five-Judge Constitution Bench headed by the Chief Justice K.G. Balakrishnan, counsel said “creating quotas of this kind do not remedy backwardness, it deifies [glorify] and perpetuates it. The remedial effect of special provision has not been established on hard empirical data.” The Bench is hearing a batch of petitions challenging the 93rd Constitutional amendment and the quota law enacted after the amendment. Mr. Salve said “there is no data to establish the exact social malaise sought to be remedied — the level of social and educational backwardness and the manner in which ‘across the board’ quotas in undergraduate, graduate and post graduate education would cure this ‘malaise.’ This data must draw upon the five decades plus of experience of the limited quotas that have been worked so far.” He argued that the impugned legislation “purports to create quotas of 100 per cent in additional seats created in educational institutions. It is a law that is ex-facie discriminatory and violative of Articles 15 [prohibition of discrimination on grounds of religion, race, caste, sex or place of birth] and 29 [protection of interests of minorities] of the Constitution.” On the Centre’s contention that the law was protected under Article 15 (4) or 15 (5) (special provisions for advancement of backward classes), Mr. Salve said, “a special provision must identify the beneficiaries with a necessary degree of specificity — if the class being identified on some ‘broad brush’ basis, it must have a necessary degree of homogeneity.” He argued that if the fundamental definition of the measure was based essentially on caste, it lacked the necessary elements to empirically establish homogeneity. He said “it is out of tune with Article 340 [appointment of a Commission to investigate the conditions of backward classes] — it lacks the data to establish the compelling State interest.” He said, “even if it were to be assumed that ‘caste’ could be equated with ‘class’ — it must then necessarily exclude the ‘creamy layer’.” No machinery
He argued that the law was for an indefinite period of time and there was no machinery for review as an integral feature of the ‘special provision’ itself. On the reliance placed by the Centre on Article 16 (4) (making provision for reservation in appointments), Mr. Salve said, “the reliance on Article 16 (4) is misconceived — it is a measure of social empowerment of a defined class that was designed to break social disabilities by the very conferment of a status of a government job. In any event, the government has been unable to placed data to establish the degree of co-relation between the remedy of quotas and working experience of the past five plus decades.” He will continue his arguments on Thursday.
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