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Standing Committee report on OBC reservations : Heat off after SC clarification

	October 23, 2006

The looming confrontation between the legislature and the judiciary over the Supreme Court direction that the report of the Parliamentary Standing Committee on OBC reservations be placed before it in a sealed cover has been averted with the apex court clarifying that the report be placed before it after it is tabled in Parliament. The court’s clarification came through a written order on October 17 in the backdrop of a political outcry that Parliamentary Committees were accountable only to Parliament.



In its earlier directive, a two-Judge bench of Justices Arijit Pasayat and L.S. Panta had asked the government to place before it the report of the Parliament Committee which is examining the Bill for providing OBC quota in higher educational institutions in a sealed cover.



The order dated Oct. 17 said Additional Solicitor General Gopal Subramanian had stated that the Bill was under examination of the Committee. “In all probability, the report, if received from Parliament, will be placed before Parliament in the winter session which is likely to commence from 27.11.2006. Assurance is given by him (ASG) that a copy of the Standing Committee’s report shall be placed in a sealed cover before this court.”



Political parties had reacted sharply to the court’s earlier directive. Parliamentary Affairs Minister P.R. Dasmunsi was the first to point out that a Standing Committee report has to be submitted to Parliament. “It is my duty to ensure that the report is submitted to Parliament first,” he said.



Dasmunsi said the report becomes a public document only after it is tabled in Parliament. But he also made it a point to mention that each wing in a Parliamentary democracy needs to respect the authority of the other.



“No one should encroach on the jurisdiction of the other. No one should undermine the authority of the other,” he said. CPI’s secretary D. Raja took the line that “Parliament was within its powers to enact the Bill.”



The CPI(M) and the BJP also came out against erosion of the powers of parliament. The CPI(M) Politburo said it was a basic precept of the Constitution that policy-making, subject to Parliament’s approval, was an exclusive prerogative of the executive. BJP general secretary Arun Jaitley said : “The judiciary has the power of judicial review, but that is after laws are framed, not before.”





Observers say that the apex court’s original order had raised the hackles of parties across the political spectrum as they felt that it again reflected what they called the judiciary’s bid to encroach upon legislature’s rights and domain. The issue was discussed at a meeting of the Parliamentary Standing Committee on October 18. Speaking afterwards, the Committee chairman and senior Congress MP, Jnaradhan Dwivedi said, “the Committee will submit its report to Parliament.”





OBC quota implementation after law is enacted



At Monday’s (Oct.16) hearing, the Supreme Court had questioned the Centre on its policy for 27 per cent reservation in institutions of higher education without having full data. It said the Government appears to be rushing ahead with the exercise without bothering to collect elementary data. The court also faulted the Government on keeping the ‘creamy layer’ within the quota ambit disregarding what it called the spirit of the Constitution bench judgement in the Indra Sawhney case. Observers say that one point the court appeared to be so unhappy with the Government’s stand that it was on the verge of requesting Parliament not to proceed with the Central Educational Institutions (Reservation in Admissions) Bill 2006. It relented only when Additional Solicitor General Gopal Subramanian promised to keep the court informed averting the prospect of a conflict with the legislature.



The Government told the court that OBC quotas in educational institutions would not be implemented unless a law was passed by Parliament. He said, “there arises no question of enforcing the policy till the law is in place.” The court also referred to other grey areas in the Bill which it wanted the Centre to explain.



The Bill seeking to introduce 27 per cent reservation for OBCs in premier Central Government educational institutions including IITs, IIMs, AIIMS, Delhi University and JNU is silent about inclusion/exclusion of the ‘creamy layer.’ Another aspect which puzzled the court was the interchanging of socially and economically backward classes (SEBC) with OBCs. The Centre’s affidavit sought to create an impression that in the absence of seats being filled by SC/ST reservation, the same would be open to OBCs.



The affidavit came in reply to the Court’s recent direction in the wake of a bunch of petitions questioning the Government’s decision to extend 27 per cent reservation to OBCs in central higher education institutions. The court had sought a specific reply from the Government as to what was the basis for determining the 27 per cent reservation for OBCs and what will be the modalities to implement it.



In defence of its stand, the petitioners quoted data compiled by the National Sample Survey Organisation and National Family Health Survey, both indicating contradicting figures with regard to the OBC population in the country. The NSSO quoted 32 per cent figure for OBCs while the corresponding figure with NFHS was 29.8 per cent. This raised a pertinent question as to where are the missing 200 million OBCs.





There should be ‘creamy layer’ for SCs/STs also



In another case dealing with reservations, the Supreme Court upheld reservation in promotions for people belonging to the scheduled castes and tribes, but said that no state can exceed 50 per cent quota in jobs. A five-judge Constitution Bench headed by Chief Justice Y.K. Sabharwal, while upholding the Government’s decision to amend the Constitution to provide for reservations for SCs and STs in recruitment and promotions, sought to lay down the ground rules for the quota regime.



The court sought to extend the concept of ‘creamy layer’, limited so far to the other backward classes (OBCs), to SCs and STs. It ordered exclusion of the ‘creamy layer’, SCs and STs, from the ambit of reservations. Observers say that this certain to trigger another bout of confrontation and the judiciary and the political class.



The court stated that in order to maintain the structure of egalitarian equality, the concept of ‘creamy layer’ had to be maintained as a constitutional requirement, failing which the structure of Article 16 (4) would be destroyed.



The judgment threatened to provoke a backlash from quota-hawks. “Our party has always believed that creamy layer should not be kept out of the ambit of reservations,’’ observed Lok Janshakti Party leader and Union Steel and Chemicals and Fertilizer minister Ram Vilas Paswan, while AICC general secretary Digvijay Singh reiterated the call for judicial restraint.



“Policy issues should be left to Parliament and Assemblies as they represent the will of the people, who are supreme in a democracy,’’ he said, adding, “I’ve always maintained that neither the judiciary nor the executive should encroach upon each other’s jurisdiction as laid down in the Constitution.’’



The Supreme Court has maintained that the ‘creamy layer’ (qualitative exclusion) concept be applied to all the reserved categories, including the SCs and STs, which have been carved out of the Backward Classes. The categories of SCs and STs is a classification within the egalitarian equality. The bench said that the concept of ‘creamy layer’ has to be maintained as held in Indra Sawhney judgment in the Mandal Commission matter.



The bench also made it clear that the extent of reservation shall not be exceed 50%. In this regard “the state will have to show in each case the existence of the compelling reasons, namely backwardness, inadequacy of representation and overall administrative efficacy before making provisions for reservation” said justice S H Kapadia while reading out the verdict on behalf of the bench.



It made clear that even if the state has compelling reasons, it will have to see that reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer of extended reservation indefinitely,’’ said the bench, which also comprised Justices K G Balakrishnan, C K Thakker and P K Balasubramanyan.



The court held that the provision for reservation was an “enabling provision” and the state was not bound to make reservation for SC/STs in the matter of promotion. However, if they wish to exercise their discretion and make such provision the state has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.



The two Left parties - CPI(M) and CPI - said they did not agree with the SC order. CPI(M) general secretary Prakash Karat said, “Creamy layer is just for OBCs and not for SCs/STs. We don’t agree about creamy layer among SCs/STs.”CPI national secretary D Raja called the order “a retrograde judgment, which will pave the way for dismantling of reservation”.



The Congress, however, was cautious in its response, merely observing that the issue was going to be intensely debated in the coming days.



“Inevitably, the future debate will centre on whether the creamy layer concept - born in the context of OBC reservations - can be applied to SCs/STs,”party spokesman Abhishek Singhvi said.



Striking a similar note, BJP spokesman Ravi Shankar Prasad said, “We have to study the full import of the judgment.



“The BJP is for affirmative action and the benefit of reservation to be received by the really needy. However, we would like to know the government’s response to the judgment.”





Will enforce the rule of law : SC



In another case last week, the Supreme Court reiterated its determination to enforce the rule of law. Turning down the Centre’s plea to modify its September 29 order on sealing of commercial establishments running out of residential areas in the national capital, the Chief Justice Y.K. Sabhwarwal said, “The rule of law is part of the basic structure of our Constitution. So long as laws are there, government and the authorities have to see to it that they are implemented. If not implemented, it is for us to implement them, otherwise, we will be violating the oath.”



A three-judge Bench, headed by the CJI, rejected most of the submissions by Solicitor General G.E. Vahanvati. The court refused to dispense with the requirement of filing undertakings by traders to avail the benefit of September 7 and 15 notifications on land-use, but extended the deadline for it. The notifications, which have already been challenged before the court, permit mixed landuse/Commercialisation of premises on 2,183 roads/streets.



Vahanvati wanted the court to do away with the order restraining the government from issuing any further notification permitting mixed landuse or commercialisation of buildings in similar areas.



However, the Bench said if the government wanted to make such changes, it should seek the court’s permission in terms of the September 29 order. It clarified that the order related only to the 2001 Delhi Master Plan and would not come in the way of the finalisation of the 2021 Master Plan.



The court turned down the plea of the 44,000-odd traders who had filed affidavits earlier and now have been ordered to close down their shops by October 31. “It is a closed chapter now,” the Bench said.



The Bench made it clear that there was no question of any substantive change in its September 29 order. “We hope that the government wants, at least now onwards, that there should be enforcement of the law,” the CJI said.



The CJI, who retires in January 2007, said, “My brother judges are not from Delhi. But I have grown up in this city and know its problems very well. I have my relatives and friends here. Many of them, including lawyers, are affected by my orders on sealing.



“Whether my decisions make them happy or not, I have to adhere to the oath I have taken as a judge of the Supreme Court,” the CJI observed, driving home the need to uphold the rule of law.



As the Solicitor General talked of complete institutional failure leading to unplanned development of the city, the CJI said, it was all the more important to have planned development now.



The Government appears to have reconciled itself to its inability to provide any reprieve for the thousands of owners of shops and commercial establishments who have filed affidavits undertaking to close shops within the stipulated time. The Group of Ministers dealing with the issue met on Thursday, Oct. 19, and decided to expedite Master Plan 2021. Speaking afterwards, Urban Development Minister S. Jaipal Reddy said that the Government wanted to develop Delhi into a world class city, while taking the ground realities into account.