The Hindu : National : Historical discrimination cannot justify reservation: counsel

Online edition of India's National Newspaper
Wednesday, Sep 19, 2007
ePaper

National

National

Historical discrimination cannot justify reservation: counsel

Legal Correspondent

New Delhi: Historical discrimination of certain classes cannot by itself be a factor for determining the beneficiaries of the 27 per cent OBC quota law, senior counsel Rajeev Dhavan argued in the Supreme Court on Tuesday.

The correct approach “is to look at the continuing wrong, not past discrimination which was inflicted by other generation for which the present generation cannot be forced to pay the price,” Mr. Dhavan, appearing for the All-India Equality Forum, told a Constitution Bench headed by Chief Justice K.G. Balakrishnan.

The Bench, which includes Justices Arijit Pasayat, C.K. Thakker, R.V. Raveendran and Dalveer Bhandari, is hearing a batch of petitions questioning the 93rd Constitution Amendment and the OBC quota law enacted under the amendment .

Pointing out that vast changes had taken place in the country since the Mandal Commission used the demographic statistics of the 1931 Census, counsel said, “We are concerned with the present as reflected by the past and not to provide equities for historical discrimination except to the extent to which it continues.”

If the present quota law was implemented, it would result in “reverse discrimination.”

“Quotas are not a punishment for the non-reserved category. Reverse discrimination arises when the criteria for identification or the extent of affirmative action is structured in such a manner that the non-beneficiaries who are better qualified are deprived of their entitlement in ways that are unfair.”

Elaborating, Mr. Dhavan said, “If the structural balance of equality in the light of efficiency is disturbed and individual rights [are] encroached upon by excessive support for group expectations, this would amount to reverse discrimination.”

It was not necessary that affirmative action should only take the form of quotas.

“Quotas are mandatory only in respect of political representation made in favour of SCs/STs and Anglo-Indians in Parliament and the State legislatures but discretionary in all other respects.”

Mr. Dhavan faulted the quota law, saying there was a total lack of criteria for identifying the socially and economically backward class status, and caste was being used as a criterion to excite vote banks. “Twenty seven per cent has been mandated on the basis of a criteria and calculation which does not exist. The principles of exclusion and inclusion affect not just the well-off but also the poor, the salaried sector, lower income and middle income families and groups, which have insufficient disposable incomes to address educational concerns other than those offered in India on merit.”

Mr. Dhavan will continue his submissions on Wednesday.

Printer friendly page
Send this article to Friends by E-Mail

National