Well, that is how I shall describe today’s proceedings of Pan-IIM Alumni Association v. Union of India (W.P.[c] 3449/2008] before the Delhi High Court Bench comprising Justices T.S.Thakur and Siddharth Mridul. Today, the petitioners’ counsel, Harish Salve succeeded in persuading the Bench to issue notice to the Union of India on the matter.

The crux of Salve’s submission was that the Supreme Court’s April 10 judgment in Ashoka Kumar Thakur case laid down certain tests/parameters by which OBCs have to be determined. He said: “The judgment said, caste can be a starting point, but you have to arrive at the OBC”.

Justice Thakur asked whether determination of BCs must be post-Act. Answering it in affirmative, Salve said, interpreting Justice Pasayat, that if a caste assimilated a large number of graduates, that caste has to go out of the list. Asking who has to do that exercise, he said the Judges also wanted poverty to be factored in. The nature of examination of the list cannot be Kerala model, he said, referring to the manner Kerala assembly passed an Act saying there was no creamy layer among the BCs in the State, which was later struck down by the Supreme Court.

Justice Thakur then asked Salve, what according to him, should have been done after the April 10 Judgment of the Supreme Court. Salve then said, the majority judgment said upto 27 per cent quota can be given to the OBCs. Pointing to Paragraph 91 of Pasayat’s judgment, Salve said if the OBC population is less than 40 per cent, then obviously, the quota should be less than 27 per cent.

Justice Thakur then asked if that had been the import of the judgment, then the Bench would have struck down the impugned Act. Salve then said, it is a complex judgment, law develops step by step, and the ratio has to be found.

The Solicitor General, G.E.Vahanvati stood up to say there is a summary which has been signed by all the five Judges. Salve said it is of no value. He reminded the Bench about the Keshavanand Bharati judgment, and the summary , purportedly signed by a few Judges. It does not become the law, he said.

Salve then said, certain absurdities would follow, if 27 per cent quota is accepted. After exclusion of the creamy layer, if the OBCs constituted 14 per cent of the population, then obviously you can’t have 27 per cent quota for the OBCs.

He said Justices Pasayat, Thakker and Bhandari were clear that 10+2 is not enough , and graduation must be the cut-off. The CJ is silent. Bhandari goes a step further and even elaborates who should be counted out at the creamy layer stage and names Ministers, MLAs, MPs etc. There ought to be a twin test and educationally forward also must be removed to form a homogeneous backward class, Salve said. He said law has to be understood as understood by the Court subject to such safeguards as laid down.

Referring to Paragraph 172 of Pasayat judgment, Salve said he referred to the power to exclude institutions from the ambit of the Act, and said this power is coupled with duty. According to Paragraph 122, there can be no reservation in super speciality courses. If the Government declines to comply, he said, it will be open to judicial review.

Pointing to the Memorandum issued by the Government on April 20, following the judgment, he said it says the OBCs should not include socially advanced persons. It clearly means educationally advanced persons can be included, which is against the ratio of the April 10 judgment, Salve maintained.

He alleged that the Government did not consider whether the Office Memorandum of 1993, fixing the criteria and determination of OBCs, and as amended in 2004, require any revision in the light of the April 10 judgment. If nothing is required, they misread the judgment, he said. You have to figure out where the balance lies, he told the Bench, when Justice Thakur asked whether what Justice Pasayat said are just observations.

Justice Thakur then asked whether the Constitution Bench had framed any common questions, to which both Salve and Vahanvati said there were so many questions. Every Judge formulated his own questions, said the SG. Justice Thakur then said it would have been easy (to find ratio), if the questions could be grouped in terms of certain issues.

Harish Salve then said Article 15(5), to the extent it applies to Government institutions, is superfluous, as Article 15(4) already covers it. The Bench upheld 15(5) for Government educational institutions but left the question of private institutions open. He said if you say 15(5) covers Government institutions, it does not lift the bar of Article 29(2). As the Supreme Court did not answer the question of Article 29(2) bar on Article 15(5), this issue is still open, and the High Court can strike it down, he argued.

Justice Thakur then asked whether the petitioner is an affected party, to which Salve said no.

The Solicitor General said all the petitioners’ grounds were argued in the Mandal II case. He said the Supreme Court had expressly upheld the 1993 Office Memorandum excluding the creamy layer. The BC list has been operating for so many years, he said, (Salve intervened to say that is the problem), and added it has stood the test of time. The SG then argued that Justice Bhandari was laying down an individual test, which can never apply to a class. Reservation is class-based. If individual graduates become ineligible for quota, the Act must have been struck down.

The SG drew the Bench’s attention to S.4(d) of the Central Educational Institutions (Reservation in Admission) Act, 2006, which has been upheld by the Constitution Bench. This section says reservations shall not apply to a course or programme at high levels of specialization, including at the post-doctoral level, within any branch of study or faculty, which the Central Government, may, in consultation with the appropriate authority, specify. He meant that if the CB believed it should not apply in all PG institutions, then it would have struck down at least this section, or if it not severable, then the entire Act.

He also drew attention to S.2[j] of the Act which clearly said teaching or instruction in any branch of study means teaching or instruction leading to three principal levels of qualifications at bachelor, (undergraduate), masters (postgraduate) and doctoral levels in agriculture and allied sciences, etc. as may be notified by the Central Government.

Salve then hastened to say he wants to amend his petition to say that if you are a graduate, you are a creamy layer. “We had enough trouble trying to interpret this judgment”, he said. “According to us, the SC read down the law”, he said. He promised to elaborate more through further averments on May 20. The case has been adjourned to July 10, 2 p.m.

Should the Bench have admitted the matter, after the SG drew its attention to S.2[j] and 4[d] of the Act? Was the petitioner correct in seeking to reopen the case in the High Court, rather than seek a review of the judgment in the Supreme Court? Can the High Court sit in judgment over the recent judgment of the SC Constitution Bench, even if there are apparently some grey areas? Well, I suppose the answers will be debatable.

Update:; Supreme Court on May 16 vacated the stay imposed by Cal.High Court on the implementation of the Act, and transferred to itself the above case in Delhi High Court, and the similar cases in Cal. and Bombay High Courts by issuing notice to the petitioners in those cases on the UOI’s transfer application. The report on the proceedings is here.