THE ongoing hearing by the Supreme Court Constitution Bench on the validity of OBC reservations in higher educational institutions has so far dealt with issues, some of which have already been debated on this blog earlier. Today, as I was listening to senior advocate, P.P.Rao, who is a counsel for one of the petitioners who challenged the OBC quota, I was struck by the originality of his ideas on the controversy. Here, I sum up some of his views, which I heard this morning. I am not indicating my own position on his views as of now, but would reserve my views till full consideration of his arguments. I am just posting Mr.Rao’s views for the benefit of some of our readers who are interested in a daily report on the hearing as such. The daily newspaper reports have not really done justice in reporting the arguments advanced so far by Mr.Harish Salve, and Mr.Rohtagi, both counsel for the petitioners.
Mr.P.P.Rao’s views (summed up in my words)
* There is a difference in the language of the Articles 15 (4), 15(5) and (16(4). Article 16(4) specifically refers to adequacy of representation of backward classes, whereas Article 15 is silent on this. Therefore, the argument that quota in educational institutions is required to ensure representation of these sections is basically flawed.
* Article 15(4) says State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and STs. The term “educationally backward class of citizens” can only refer to school education, and not education in higher educational institutions, because once you finish your school education, you are not supposed to be educationally backward, and ought to be deemed to have entered the level playing field.
* His reference to Article 21A (Right to Education) to suggest that the State has an obligation to provide education only upto the age of 14 and not in higher educational institutions was countered by the Chief Justice who pointed out that the mandate for compulsory education stems from the reality that the State may not have resources to provide education. Probably that was the reason, higher education was kept out of this mandate.
Mr. Rao’s arguments are continuing.
Thanks a lot for putting your notes up. If you would be great if you could continue to do this for those of us unable to attend the hearing. Unlike the US, in India transcripts of arguments are never released, and judges do no always reproduce the arguments advanced, or reproduce them selectively.
Have the US cases on affirmative action and the ‘compelling interest’ test been referred to by the petitioners? If so, have the judges shown any discernible reaction to them?
Coming to Mr. Rao’s arguments-
1. This could actually be turned around to say that the restraint of ‘adequate representation’ is not present in Art. 15(4)/(5) and thus reservations should be permitted to a greater degree under those Articles.
2. ‘Educationally backward’ refers to a class of people, and merely because some of a class no longer fulfil that criteria does not been that the entire class must be excluded from the purview of a measure. Those who are no longer educationally backward should of course be treated as part of the creamy layer for that class. The only persons then qualified for the benefits of reservation in higher educational institutions would be those who did not avail of reservation at lower educational levels. This is an interesting point and could be a great way to restrict reservations to primary and secondary education.
3. Art. 21A applies to all citizens. It cannot be used to cut down special measures under Arts. 15(4)/(5) in favour of specific sections of the populace.
Indian newspapers would only report about the hearings only if superficial rhetorical barbs are exchanged between the bar and the bench. They are not interested in substantive reporting. This goes back to Arun Thiruvengadam’s post about media coverage on flooding.
PP Rao’s argument is not entirely new as this had been raised in the context of creamy layer. This is just one more variation of the old argument excluding advanced persons from reservation, only that in this case, the whole of the targeted group is sought to be excluded rather a sub-section of it. With that it should be said the IS bench did accept the argument by ruling that the class compactness of OBCs should be preserved by excluding creamy layer.
When the act was stayed, Mr.Venkatesan had highlighted the govt’s contention that the creamy layer concept as arose in the IS case did not obtain entirely in this case as it relates to education not jobs; It would be interesting what is going to be
the govt argument on the following questions:
i) Is there a “creamy layer” in case of education?
ii) If there is,can we apply the IS standards/criteria for identifying creamy layer?
iii) If we cannot, in what way those criteria should be amended?
I would be really surprised if the centre’s contention that there is no creamy layer in education is maintained.