The Hindu : Front Page : ‘Failure to exclude creamy layer renders OBC quota law unconstitutional’

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Friday, Sep 14, 2007
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‘Failure to exclude creamy layer renders OBC quota law unconstitutional’

Legal Correspondent

NEW DELHI: Failure to exclude the creamy layer from the benefits of reservation will render the quota law unconstitutional and void, senior counsel K.K. Venugopal argued before a Constitution Bench of the Supreme Court on Thursday.

The Bench, headed by Chief Justice K.G. Balakrishnan, is hearing the petitions questioning the 93rd Constitution Amendment and the Other Backward Castes (OBC) quota law enacted under it.

Appearing for the Resident Doctors Association, Mr. Venugopal said as the creamy layer would be the socially and educational advanced section of a backward caste, its inclusion would result in not only unequals being treated as equals but also in the rest of the backward caste losing the benefit of reservation to this advanced section.

“The result would be that the inclusion of that caste for the benefit of reservation would be purely on the basis of caste, thus violating Articles 15 (1) and Article 29 (2),” counsel said. Though the Moily Committee recommended exclusion of the creamy layer, the law did not do so deliberately.

Identification

He argued that the Act could not be implemented on identification of the OBCs done on the basis of the 1931 census. Though the Act contemplated a fresh identification, till today it was not done.

When the Bench wanted to know from the Centre whether any identification had been done, Solicitor-General G.E. Vahanvati said, “the government has identified and determined the list of socially and educationally backward classes (SEBCs) but the notification has not been issued.”

When the Bench asked how the Centre wanted to implement the quota law without the notification, Mr. Vahanvati said, “The notification could not be issued and was held back as arguments in the matter had started.” He said technically the court was right in asking how the Centre could implement the quota law without issuing the notification on the SEBC list.

To a question how the list was prepared, he said what was common in the State lists and the Mandal Commission lists was accepted by the Centre for determination of the SEBCs.

Difference in versions

On non-exclusion of the creamy layer, Mr. Venugopal brought to the court’s notice the difference between the Hindi and English versions of the Bill. While the Hindi version specifically excluded the creamy layer, the English version did not. Reading the debates in Parliament on the Bill, he said, many members suggested that the creamy layer be excluded. But since the government had a hidden agenda, the wisdom flowing from these members’ suggestions was not accepted, counsel said.

“It is unbelievable that since 1950 not a single caste has become forward even after enjoying the benefits of reservation all these years.” Counsel urged the court to lay down guidelines and a procedure for inclusion of castes in the OBC list. The impugned Act was unconstitutional for, a wholly arbitrary power had been delegated to the Centre without any guideline laid down for identifying the SEBCs under Article 15 (5) and no machinery had been provided for this purpose.

Further arguments will continue on September 18.

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