The Hindu : New Delhi News : ‘Article 14 mandates positive discrimination’

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Friday, Sep 28, 2007
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New Delhi

‘Article 14 mandates positive discrimination’

Legal Correspondent

Constitution is not caste-blind, Vahanvati says quoting judgment

New Delhi: Providing reservation to the Other Backward Classes through special provisions is a valid classification and not violative of the Constitution, Solicitor-General G.E. Vahanvati argued in the Supreme Court.

Appearing for the Centre before a five-judge Constitution Bench hearing the OBC quota case, he said, “This concept of positive discrimination in favour of backward classes of citizens is the mandate of Article 14 [equality before law].”

Mr. Vahanvati said, “The objective of introducing Article 15 (5) through the 93rd Constitution amendment is a positive discrimination based on the valid classification to meet the objectives of social justice i.e. providing opportunities to weaker sections.”

The petitioners argued that providing 27 per cent reservation to the OBCs would be violative of Article 29 (2), which says “no citizen shall be denied admission to any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.”

“Not discriminative”

Refuting this contention, Mr. Vahanvati said “a plain reading of Article 29 (2) shows that it does not apply if provision is made for backward classes. When the basis for classification is not solely those grounds, the same does not fall foul of Article 29 (2). The ground for classification is not ‘only’ caste but it is part of the measures to bring about equality between the unequals which cannot be antithetical to Article 29 (2). Classification made for the purpose of Article 15 (5) cannot be said to be discriminative in nature so as to attract the bar under Article 29 (2).”

Quoting an earlier judgment, he said, “The Constitution is not caste-blind. If the citizens belonging to a caste can as such be rationally assumed to be backward, the entire caste can as such be recognised as a backward class.”

Quoting from various reports of the Central and State Backward Classes Commissions, Mr. Vahanvati said, “The commissions applied their mind by going through the elaborate procedure on the applications for inclusion of castes in the backward classes lists.” If new castes were included it was because they had not been considered earlier.

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