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.