The voice of consent expressed by four supreme court judges while upholding the 27% quota for OBCs in central institutions of higher education also leaves ambiguity on the core issues involved
NEW DLEHI: The voice of consent expressed by four supreme court judges while upholding the 27% quota for OBCs in central institutions of higher education also leaves ambiguity on the core issues involved, which may not be resolved during the forthcoming academic session.
Some legal pundits who were involved in the prolonged litigation are minutely reading the four sets of judgments including the dissent by Justice Dalveer Bhandari. They wouldn’t like to comment without culling out the specific points on which the judgment by chief justice KG Balakrishnan and justices Arijit Pasayat and CK Thakker or the one by justice RV Raveendran have failed the resolve the crucial issues for good.
The 500-odd page judgments including that of justice Bhandari do specify the criteria for skimming creamy layer, but the judges aren’t unanimous on the period of review to judge whether the quota has served its cause.
The CJI agrees with the constitutional mandate that the reservation policy would be reviewed within a decade. Justices Pasayat and Thakker’s judgment reduces the period to five years. Justice Raveendran’s views aren’t known and justice Bhandari is dismayed at the continuity of the quota policy.
But all the judgments taken together, the petitioners who were aggrieved by the government’s quota policy and challenged the 93rd constitutional amendment and the Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) Act 2006, could move the court again, preferably before the next academic session starts, to seek clarifications regarding the powers of the court to adjudicate on the executive decision about exclusion or inclusion of OBCs or the skimming creamy layer from certain class or including others in it.
However, justices Pasayat and Thakkers’ judgment says for ‘determining backwardness, graduation (not technical graduation) or professional shall be the standard test yardstick for measuring backwardness’.
This would have to be looked into by the statutory commission set up by the Centre after the Mandal judgment. “To strike the constitutional balance it is necessary and desirable to earmark certain percentage of seats out of a permissible limit of 27% for socially and economically backward classes,” the judgment says and this along with the graduation condition could be another factor that might require a fresh look by the court.
Though the Central government has been asked to formulate the schedule for institutions where the quota rule has to prevail, its decision on the issue would however be open for judicial scrutiny.
Similarly, a group of persons aggrieved by the executive decision to exclude it as the creamy layer could also approach the court.
Thus, experts feel the litigation that started on the issue of creamy layer may not be resolved soon as the judgments open up more areas on which the apex court alone could give an unambiguous answer.
b_rakesh@dnaindia.net
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