A reluctant ‘stay’ on the basis of flawed reasoning

The language of the Supreme Court’s stay of section 6 of the Central Educational Institutions (Reservations in Admissions) Act, 2006 makes for strange reading. In the last paragraph, it says: “In the background of what has been explained above, it would be desirable to keep in hold the operation of the Act so far as it relates to Section 6 thereof for the OBCs category only.” There is no direction to the Government to do so. As happened in the case of M.Nagaraj, which led to considerable ambiguity whether the SC wanted extension of creamy layer principle to SC, and STs, the latest ‘stay’ is bound to cause certain misgivings, with demands pouring in from the political parties and affected sections of people that the Government should not withdraw from implementing the OBC reservations despite the Supreme Court’s two-Judge Bench’s “desire”. Curiously, the Bench cites the same ambiguous paragraph in the M.Nagaraj judgment to justify its stay.
There is an inescapable feeling whether the Court has reduced the controversy to a civil dispute, by granting a stay. Whatever has happened to the presumption of legality of legislative Acts? Instead of asking the petitioners to come out with facts and data to challenge this legislative presumption, the Court has swung the other way around, and has asked the Government to explain and defend itself, and w hen it did, it expressed dissatisfaction, by granting a partial stay. If the Bench had an open mind, the stay need not have been granted. After all, the balance of convenience was against the stay: the general candidates had nothing to lose, as their existing quota of seats would be protected under the Act, whereas the OBC candidates would have lost one academic year because of the stay of Section 6, if later the Court found the entire Act valid, after detailed hearing of the parties. In Mandal I, what was stayed was executive Memorandum, till it was found valid in the Indra Sahney case. Staying the operation of the Act is much more serious, but the Court has not at all justified the stay in the judgment. What happens if the Government is asked to provide survey-based data for each and every progressive step it takes, on the basis of its instinctive, impressionistic assessment, where survey-based data collection may have no relevance at all. Would not governance come to a standstill?
The Court assumes that the 1931 Census is the determinative factor, and voices its disapproval. This, however, is a flawed assumption. The Court selectively quotes from Indra Sawhney, leaving out those paragraphs of that judgment which dealt with the validity of the data relied upon for arriving at the 27 per cent. The Mandal Commission arrived at 27 per cent reservation based on multiple procedures in the contemporaneous context. (paragraph 16 of the Judg.)
There is need for periodical identification of the backward citizens and for this purpose the need for survey of entire population on the basis of an acceptable mechanism, says the court in paragraph 19. Such a mechanism already exists for this purpose: Section 11 of the National Commission for Backward Classes Act, 1993 –as dealt with in paragraph 11 of the Judgment- provides for it. The Act also provides for a complaints redressal mechanism, wherein, if anyone is aggrieved that a particular caste is no longer backward, it could bring this to the attention of the Commission, with proof, and the Commission’s recommendation in this regard is binding on the Government. The Court has not answered the criticism that a survey of the OBC population is unnecessary to arrive at the percentage of reservation. All surveys clearly reveal that the population is more than 27 per cent : Mandal put it at 52, and others may be less.
Lastly, the Bench admits that the UOI’s claim that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) has to be examined in detail, to see whether it is based on sound foundation. If that is so, why grant a stay of Section 6 of the Act on the basis of its wisdom that creamy layer is a necessary bargain between the competing ends of caste based reservations and the principle of secularism – as the plea of the petitioners for the stay of the Act is not at all relevant to the question of whether creamy layer is a necessary bargain or not.
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  • Mr. Venkatesan,

    Let me begin by thanking you for the reference. I was able to access the judgment with the reference supplied by you. I do find your criticism of the Supreme Court order compelling, but I cannot share your opinion for the following reasons

    First, you assert that the Supreme Court “reduced the controversy to a civil dispute, by granting a stay”. It did not. If you look at the order, the Court conducted a full fledged hearing. It elaborately considered the contentions of the petitioners and the government like any other constitutional dispute. It heard and decided the case on merits. The stay is not the product of an interim hearing where the court does not hear the case on merits. So questions of “balance of convenience” and “presumption of constitutionality” are irrelevant when the Court heard the case on merits. The very fact that the Court gave an elaborate order should itself suggest that the case was heard on merits and the proceeding was in no way similar to an interim hearing in a civil dispute.

    Ideally the Court should have struck down Section 6 since there was no data to back up the OBC reservation. That’s precisely what a five judge bench of the AP High Court did in the Muslim Reservation case in 2005 when it struck down an AP Act giving 5% reservation to Muslims inter alia on the ground that there was no objective data to back up the quota. The Supreme Court could have done the same thing, but that would have nullified the entire OBC reservation process. Instead the Court as a compromise solution said that the Act is unconstitutional as of today, but the Act can become constitutional again if the government presents sufficient data and therefore the “interim stay”. If by the next hearing in August, the government can come up with evidence, the Court will uphold the Act.

    Second, you assert that governance will come to a standstill if the government is asked to provide survey-based data for each and every progressive step. I differ with you again. There are several progressive steps which the government can take, which do not require it give data to back up that decision. Neither the Constitution nor the Court ever required the court to give data for some of the “progressive” decisions like bank nationalization or the rural employment guarantee scheme. But reservation is an exception. It implicates equality and more so when you are using a constitutionally prohibited criterion of caste (Art 15(1) and Art 16(1)) in identifying backward class. Indra Sawhney in 1992 said the government can use caste, provided it shows an adequate basis for such an exercise.

    In Indra Sawhney, Jeevan Reddy speaking for the majority specifically said that the process of identification of backward classes has to be an objective exercise. Para 737 (“Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. As held herein–and also by previous judgments, the exercise is an objective one. Certain objective social criterion have to be satisfied before any group of citizens can be treated as backward. If the executive includes for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.”) The rationale for imposing such a high standard is to ensure that designation of a particular community as backward class is based on equality considerations and not on account of political considerations. In Indra Sawhney, Mr. K.K.Venugopal, using Tamil Nadu as an example, contended that very often a community is included in the BC list for political reasons. The Court rejected his contention saying that the government has to give objective data and judicial review can always be invoked. See Para 735 and the response of the Court in Para 737. The Court is certainly justified in demanding hard data to show that the OBC’s are a backward class.

    Third, you assert that the Court “has not answered the criticism that a survey of the OBC population is unnecessary to arrive at the percentage of reservation. All surveys clearly reveal that the population is more than 27 per cent : Mandal put it at 52, and others may be less.” Your assertion is correct when it comes to providing govt jobs under Article 16(4) where the overall population of OBC acquires relevance. Under 16(4), the government has to form an opinion whether they are adequately represented in the services of the state and for this population acquires relevance. But the overall OBC population is not directly relevant when it comes reservation in educational institutions under Article 15(4) and 15(5). The government must show that OBC community is a “socially and educationally backward class” and merely showing that they are 52% of the population does not satisfy that criterion. Even if a community is only 1% of the population, it is entitled to reservation under Article 15(4)and(5) if it can be shown that they are socially and educationally backward.

    I think the Supreme Court judgment promotes equality rather than undermining it by putting pressure on the government to give reservation to those who really deserve it by virtue of their social status and not by virtue of their political power.

    I look forward to your response

    Vivek Reddy

  • Dear Vivek,
    Thanks for the reasoned response. It will be certainly useful to refine my thinking on this issue, and I may take some time to respond to you point-wise.

  • Vivek, Could you please help me to know, what according to you, are the justification for the stay, as given in the Judgment. It is true that the Bench has summarised the stand of both the parties as evidence of its detailed hearing of the case at this stage. But the Bench is also admitting that the matter requires detailed examination. What is the justification for the stay? Why the Balance of convenience principle cannot apply in this case simply because the parties have been heard elaborately on this. Again, why the presumption of legality/constitutionality of statute cannot apply in this case? Can you remember any instance where a statute has been stayed in this manner, without giving a justification, meriting the Court’s immediate intervention, before hearing the substantive points raised in the petition. Will there be a irreversible damage, if it is not stayed? Your answer would hopefully clear some of my doubts. Also, please let me know your email ID, as it would help me to send more material on this if necessary.