Siddharth Narrain, The Hindu, 30 May 2006
Won't stay 93rd Amendment Act but issues notice to Centre on quota issue
# OBC figure quoted by Mandal Commission challenged
# Court asks Government: explain modalities and rationale for fixing norms for quota regime
NEW DELHI: The Supreme Court on Monday refused to stay the 93rd Constitutional Amendment Act, but issued notice to the Central Government, the States and the Union Territories on a public interest litigation (PIL) petition challenging the Amendment's validity.
The Amendment is the basis of the Centre's plans to extend 27 per cent reservation for Other Backward Classes (OBCs) in institutions of higher learning.
A two-judge vacation Bench, comprising Justices Arijit Pasayat and Lokeshwar Singh Panta, asked the Centre to explain the modalities for implementing its proposal.
Mr. Justice Pasayat said the anti-reservation protesters should end their agitation as the matter was before the Court.
The court issued notice on the PIL petition by educator and business consultant Shiv Khera and on another by Supreme Court senior counsel Ashoka Kumar Thakur, seeking the Court's intervention to ensure that the Centre submitted all relevant reports and data on which it had based its decision.
Mr. Thakur's petition challenged the basis of the Mandal Commission's conclusion that OBCs constituted 52 per cent of the total population. The National Sample Survey Organisation had estimated it as 32 per cent and the National Family Health Survey 29.8 per cent.
The Court issued notice to six Union Ministries and also to the Federation of Indian Chambers of Commerce and Industry in this connection.
The Court asked the Centre to explain the basis on which it had fixed the norms for determining who belonged to the OBC. "If you are going to implement these provisions [for reservations for the OBCs], what are the modalities you are going to adopt and the rationale for fixing these norms," Mr. Justice Pasayat asked Additional Solicitor-General Gopal Subramanium.
"It is contended that the adoption of this policy will divide the country on caste basis. This will have ramifications for the social and political fabric of the country, and the Court will consider this issue later."
Mr. Subramanium said the points raised by the Court were about the question of "creamy layer."
Mr. Khera challenged the constitutionality of the 93rd Amendment Act, saying it was discriminatory and violated the fundamental right to equality. The Amendment inserted Article 15(5), enabling the state to make any special provision for the advancement of "any socially or educationally backward classes" or for the Scheduled Castes or the Scheduled Tribes, insofar as these provisions related to their admission to educational institutions, including private ones.
The court gave the Centre six weeks to file a rejoinder.